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Even a live-in partner can slap 498A these days: senior Indian advocate

by IBNS 04 May 2016, 09:12 am

An advocate by profession, Delhi-based Sudipta Basu fights for men caught in Section 406, 304 B and the controversial 498A of IPC under which a husband or his relatives can be imprisoned up to three years and denied bail at the complaint of cruelty by his wife. He has formed "Justice for Men Caught Up in 498A/DV Act", a forum which lends support to male victims of laws like the 498A. In an interaction with IBNS correspondent Sudipto Maity, Basu shares his legal experience while fighting for the men. With cyber crimes becoming a daily issue, this senior advocate also has some advice pertaining to Cyber laws in India.

What is Section 498A all about? Why should we be worried about it? 

Typically Section 498A says: 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.

It is very interesting the way cruelty is defined. Obviously the legal jargon is called ‘any willful combat’ which is of such a nature as likely to provoke the woman to commit suicide or to cause grave injury or danger to life of that woman or harassment of that woman such or make unlawful demand of property or value. This is such an act where anybody at anytime can be entrapped. Because what is a willful combat? Any woman can suffer from a mental disorder and commit suicide. Then the onus is on you to prove yourself innocent. But it is not 498 A alone, it is generally applied with 406 (Criminal Breach of Trust) and 304 B (Dowry Death).  Now it is very difficult to prove whether a criminal breach of trust has happened or not. So these sections are by far the most abused sections of IPC and it has so happened that a husband comes to know of his wife’s extra marital affair and the wife in turn sues him by filing a case under these sections. These days even a live-in partner can slap 498A.

 
Is Section 498 A the most misused section? If yes, why?


I can’t say it’s the most misused. It is very difficult to say like that, but definitely it’s one of the most abused one. Because all you have to do is go and file a complaint. Even more misused is the Protection of Women from Domestic Violence Act , 2005, Section 12, under which anybody can go and say I have been a victim. From there on the proceedings will take place and will go on for years. It is a nightmare for the guy.     

 
Is there a way out of it if you do get entangled in one?

Till 2014 a lawyer could do very little except fight the case. Though the conviction rate was only 4 percent, everyone involved was arrested. Now you need special permission in order to either arrest the husband or the in-laws. A landmark judgment by the SC in 2014 said there cannot be any automatic arrest. You have to investigate the entire matter, have valid grounds before you can arrest someone. Now when do you slap a 498A? Mostly in cases of Illicit affairs. You suspect the wife of an affair and she goes into counterattacking mode and files a complaint. You are immediately checked. You cannot contact her, cannot clarify issues and you are completely entrapped. It also happens mostly in love marriages, where both the in-laws want it to end and provoke the girl to do so.  There have been cases when the 498 A was slapped to teach the in-laws a lesson, to settle past scores.

Does any medical condition come to the rescue? Say a man suffering from BPD (Bi-polar disorder) , can he be tried too? Given he is going to come up with different emotions at different times?  

Bi polar disorder can be from both sides. There are judgments from Bombay High Court and also the Delhi High Court where it was stated that it was the wife who had BPD and she would be loving at times and retaliate the very next moment. So it’s the BPD of the wife that comes in to play. However, the only alibi a guy can have with such cases is that he has a long history pertaining to the case. By that he might not be set free or be in a safer position but he will still be in a better position as compared to the rest. He will still have a chance to bat on. That might actually land him in a mental asylum instead of a jail. Having said it all, it is very difficult to prove that the guy is or was suffering from such a medical condition and committed the crime while he was in such a state.

Who can file the complaint? Is is limited to the victim/wife? Or the same can be done by the girl's parents/family members?

Generally the complaint becomes strong if the girl arrives. Because it becomes silly if someone else does it. She has undergone the torture assuming she is telling the truth. So it’s always better if the girl files the complaint. If the girl dies, normally 304 B will be slapped along with 498 A and the parents or the brother will do it. But if she is alive, it’s advisable that she goes and lodges the case.

On the personal front, how many cases have you tackled pertaining to this particular section?

Multiple cases. But I cannot talk to you about these as they are of confidential nature and they go on for years.

Any such case which you remember vividly?

There was this case where a woman wanted divorce from her husband within six months of marriage. She alleged that the man failed to satisfy her. Upon investigation it was found out that they were in an intimate relation for seven years where they had sex daily, prior to the marriage. The lady said that he was suffering from schizophrenia. The doctor said yes he was under mild medication, which she already knew. The Delhi HC granted the divorce but the Supreme Court turned it down saying it was no ground for divorce after the guy moved to the apex court. You see, 498 A is also used for quick divorce, but it cannot be used in isolation, some other sections must be used.