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How to seek bail in false 498A/406 IPC

Matrimonial cruelty is the cruelty to which women is subjected to, by her husband and his relatives. Cruelty in matrimonial terms is physical and mental torture caused by the actions of the husband and his relatives towards the wife.

To deal with matrimonial cruelty our constitution makers inserted section 498a in Indian Penal Code which reads as under:-

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 purpose 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.

Effectiveness of IPC Section 498A on society

The object of our framers of the constitution is to safeguard the women from harassment at their matrimonial home. But some of the women makes this law as tool of extortion or we can say weapon to fulfill their desires and throw out their frustration as revenge by humiliating the husband and his relatives in front of society. Not every cruelty is matrimonial cruelty under 498a until there was a demand of dowry.

What a great irony is that, where our law has foundation on the principle that says, let a hundred guilty be acquitted, but one innocent should not be convicted, is it really the question of conviction or acquittal? 

It’s all about the mental torture from which, one have to suffer due to false allegation put on him with ulterior motive. As we can conclude this is due to rigidity of our procedural law. Nowadays courts also think on this negative step taken by women to trap the innocent people and passed several bail orders keeping in mind various aspects on valid grounds during trial. The main concern of granting bails is the tenet principle that is, “ei incumbit probation qui dicit, non qui negat” which means one is considered innocent unless proven to be guilty. In recent judgement Social Action Forum for Manav Adhikar and another v. Union of India, Supreme Court modifies the earlier directions issued to prevent misuse of 498a in Rajesh Sharma v. UOI case.  Supreme Court removes welfare committees and safeguarded the husband and his relatives by inserting a anticipatory bail provision in dowry harassment cases.

Grounds considered by Courts while granting Bail in recent judgements

1. Nitesh Arora v. State Govt. of NCT Delhi, 18 July 2018, Delhi High Court

Petitioner had offered to return some of the dowry articles complainants claims to be and in the meantime files an application seeking permission to travel to USA for an assignment. It is also mentioned that the visa of the petitioner is due expire soon and its extension should be necessary for completion of assignment assigned to him by the employer, visa would only be applied once he reached USA.

2. Lalit Singh Negi v. State, 17 April 2018, Delhi High Court

Court held that as all the Stridhan had returned no case of custodial interrogation is made out.

3. Parag Bansal & Ors. v. State, 12 January 2018, Delhi High Court

It is contended that FIR was lodged after filing an application u/s 125 Cr.P.C. . It is also contended that all the allegations are false.  The complainant, who is well educated and is practicing as an advocate and aware of her rights, has sought to improve upon her story, to falsely implicate the petitioners.

4.  Akshay Kumar v. The state Govt. of NCT Delhi, 13 November 2017, Delhi High Court

Complainant demanded a sum of money to dissolve marriage and threatened to harass and humiliate the petitioner and his family, in case they not give her said amount. Complainant stayed with the petitioner only for two months after marriage. Court contended that there is no need of custodial interrogation and granted anticipatory bail with some conditions.

5. State v. Harshadrai Jani & ors., 26 October 2018, Delhi District Court

There was no documentary proof such as MLC of the said allegations by the complainant. Court concluded that prosecution has failed to prove offence U/s 498A/406/420/34 IPC and section 3 and 7 Dowry Prohibition Act, 1961 against the accused persons beyond reasonable doubt.


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Kapil Chandna Online
on 21 November 2018
Published in Criminal Law
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