25% OFF on all LCI Courses. Offer valid till 5th Oct. Use Code: DUS25
LCI Learning

Share on Facebook

Share on Twitter

Share on LinkedIn

Share on Email

Share More

ravindra (Analyst)     23 September 2011

Urgent reply

Hi In Feb 2011 i got 2BHK flat from MHADA in lottary system. but in March my wife went her house for holi then she said her mother is ill and never come back. after 1 month i went her house and ask to come back but she refused the to return.  then in June she filed 498a and said in her complaint tht i have demanded 5lkh rs for buying flat. we have given gold around 1.5lkh other material. then i gave bail my all 9 familiy members but after tht she approched to SR PI for compramise. Due to my family presure i agreed. But after some day her and her family demand started increaseing. they told me tht will not remove 498a and DV case first u live with her for 1 yr will see ur behaviour and thn will decied. then i decied to record. In tht conversation i asked her and her family tht when i demanded dowry and  when u gave me gold and other things then she and her famely clearly said tht ur behaviour was not good thts why we hve made this complaint. so can i go for quash or how can i show this recording in court. 2) we r 9 family member against whom 498a has made by my wife. i want to remove there name wht is procedure to remove there name. currently every monday i m going in police station for making attendence when it will stop3) In trail can police demand my custody again...plz advice......thx



Learning

 8 Replies

Sankaranarayanan (Advocate)     23 September 2011

yes u can ask your legal advocate to file a pettition for quash it  and give releaf from attentence to police station too.

u find the recent case

shusil kumar sharma vs union of india ,

mis use of  498A ,

1 Like

ravindra (Analyst)     23 September 2011

Hi sankar narayanan i asked my lawyer tht can we make application in high court for speed trail but he told me tht there is no such procedure or for quash also she told me tht after u have recordings it will still take 2 to 2.5 yr to complite the case ... is tht true... plz advice... thx

sankar narayanan I am Online

Sankaranarayanan (Advocate)     23 September 2011

As simple as that with the pleading of advocate and sources of evidence can do best, if in your case if not by quash then u can get relax from appearing police station by way of pettion .

1 Like

danish (Manager)     23 September 2011

Mr Shankar can u provide us with the judgement

shusil kumar sharma vs union of india ,

mis use of  498A ,

1 Like

Shonee Kapoor (Legal Evangelist - TRIPAKSHA)     23 September 2011

Hi Ravindra,

 

I don't agree with Mr. Shankar Narayan. The quash in such case is not possible based on evidence even if you have brought back wife who has filed 498-a and DV. Quash happens on legal grounds only and has nothing to do with evidence. Evidence is only taken in trial court and is its sole prerogative.

 

Application for speedy trial can be presented in High Court under Article 21 of Indina Constitution. The results till date are mixed, it is not that in every case filed, HC allows speedy trial.

 

The situation is grim, so to say, and I don't know why you didnot seek advise before bringing your wife back.

 

Regards,

 

Shonee Kapoor

harassed.by.498a@gmail.com

1 Like

Shonee Kapoor (Legal Evangelist - TRIPAKSHA)     23 September 2011

 

Sishil Kumar Sharma Vs Union of India

 

The most misquoted case, it is neither a case of quash nor says anything about any particular case.

 

Regards,

 

Shonee Kapoor

harassed.by.498a@gmail.com

 

Sushil Kumar Sharma Vs. Union of India (UOI) and Ors - Jul 19 2005 

Citation: JT 2005 (6) SC 266  

Honourable Judges: Arijit Pasayat and H.K. Sema, JJ.  

Issue: Evidence Act, 1872 - Section 113B; Criminal Law (Second Amendment) Act, 1983; Dowry 

Prohibition Act, 1961; Indian Penal Code, 1860 - Sections 304B, 306 and 498A; Criminal Procedure 

Code (CrPC), 1973; Constitution of India - Articles 14 and 32  

Date Of Judgment: Jul 19 2005  

Case No: Writ Petition (C) No. 141 of 2005 

More cases on : Evidence Act Total [482] 

Cases Referred:A. Thangal Kunju Musaliar v. M. Venkatachalam Potti, Authorised Official and 

Income-Tax Officer and Anr.; Budhan Choudhry and Ors. v. State of Bihar. 

Judgment:

By this petition purported to have been filed under Article 32 of the Constitution of India, 1950 (in 

short 'the Constitution') prayer is to declare Section 498A of Indian Penal Code, 1860 (in short 'the 

IPC') to be unconstitutional and ultra vires in the alternative to FORMULATE GUIDELINES so that 

INNOCENT PERSONS ARE NOT VICTIMIZED by unscrupulous persons making false accusations.

2. Further prayer is made that whenever, any court comes to the conclusion that the allegations 

made regarding commission of offence under Section 498A IPC are unfounded, stringent action 

should be taken against person making the allegations. This, according to the petitioner, would 

discourage persons from coming to courts with unclean hands and ulterior motives. Several 

instances have been highlighted to show as to how commission of offence punishable under 

Section 498A IPC has been made with oblique motives and with a view to harass the husband, inlaws and relatives. 

3. According to the petitioner there is no prosecution in these cases but persecution. Reliance was 

also placed on a decision rendered by a learned Single Judge of the Delhi High Court wherein 

concern was shown about the increase in number of false and frivolous allegations made. It was 

pointed out that accusers are more at fault than the accused. Persons try to take undue advantage 

of the sympathies exhibited by the courts in matters relating to alleged dowry torture. 

4. Section 498A appears in Chapter XXA of IPC. 

5. Substantive Section 498A IPC and presumptive Section 113B of the Indian Evidence Act, 1372 (in 

short 'Evidence Act') have been inserted in the respective statutes by Criminal Law ( Second 

Amendment) Act, 1983. 

6. Section 498A IPC and Section 113B of the Evidence Act include in their amplitude past events of 

cruelty. Period of operation of Section 113B of the Evidence Act is seven years, presumption arises 

when a woman committed suicide within a period of seven years from the date of marriage. 7. Section 498A reads as follows: 

"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 purpose of this section 'cruelty' means - 

(a) any wilful 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." 

Section 113B reads as follows:- 

"113B: Presumption as to dowry death- When the question is whether a person has committed the 

dowry death of a woman and it is shown that soon before her death such woman has been 

subjected by such person to cruelty or harassment for, or in connection with, any demand for 

dowry, the Court shall presume that such person had caused the dowry death. 

Explanation - For the purposes of this section 'dowry death' shall have the same meaning as in 

Section 304B of the Indian Penal Code (45 of 1860)." 

8. 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. Cruelty has been defined in 

the explanation for the purpose of Section 498A. It is to be noted that. Sections 304B and 498A, IPC 

cannot be held to be mutually inclusive. These provisions deal with two distinct offences. It is true 

that cruelty is a common essential to both the Sections and that has to be proved. The explanation 

to Section 498A gives the meaning of 'cruelty'. In Section 304B there is no such explanation about 

the meaning of 'cruelty'. But having regard to common background to these offences it has to 

betaken that the meaning of 'cruelty' or 'harassment' is the same as prescribed in the Explanation to 

Section 498A under which 'cruelty' by itself amounts to an offence. 

9. The object for which Section 498A IPC was introduced is amply reflected in the Statement of 

Objects and Reasons while enacting Criminal Law (Second Amendment) Act No. 46 of 1983. As 

clearly stated therein the increase in number of dowry deaths is a matter of serious concern. The 

extent of the evil has been commented upon by the Joint Committee of the Houses to examine the 

work of the Dowry Prohibition Act, 1961. In some cases, cruelty of the husband and the relatives of 

the husband which culminate in suicide by or murder of the helpless woman concerned, which 

constitute only a small fraction involving such cruelty. Therefore, it was proposed to amend IPC, the 

Code of Criminal Procedure, 1973 (in short 'the Cr.P.C.') and the Evidence Act suitably to deal 

effectively not only with cases of dowry deaths but also cases of cruelty to married women by the 

husband, in-law and relatives. The avowed object is to combat the menace of dowry death and 

cruelty. 

10. One other provision which is relevant to be noted is Section 306 IPC. The basic difference 

between the two Sections i.e. Section 306 and Section 498A is that of intention. Under the latter, 

cruelty committed by the husband or his relations drag the women concerned to commit suicide, while under the former provision suicide is abetted and intended. 

11. It is well settled that mere possibility of abuse of a provision of law does not per se invalidate a 

legislation. It must be presumed, unless contrary is proved, that administration and application of a 

particular law would be done "not with an evil eye and unequal hand" (see: A. Thangal Kunju 

Musaliar v. M. Venkatachalam Potti, Authorised Official and Income-Tax Officer and Anr.) 

12. In Budhan Choudhry and Ors. v. State of Bihar a contention was raised that a provision of law 

may not be discriminatory but it may land itself to abuse bringing about discrimination between 

the persons similarly situated. This court repelled the contention holding that on the possibility of 

abuse of a provision by the authority, the legislation may not be held arbitrary or discriminatory and 

violative of Article 14 of the Constitution. 

13. From the decided cases in India as well as in United States of America, the principle appears to 

be well settled that if a statutory provision is otherwise intra-vires, constitutional and valid, mere 

possibility of abuse of power in a given case would not make it objectionable, ultra-vires or 

unconstitutional. In such cases, "action" and not the "section" may be vulnerable. If it is so, the court 

by upholding the provision of law, may still set aside the action, order or decision and grant 

appropriate relief to the person aggrieved. 

14. In Mafatlal Industries Ltd. and Ors. v. Union of India and Ors., a Bench of 9 Judges observed that 

mere possibility of abuse of a provision by those in charge of administering it cannot be a ground 

for holding a provision procedurally or substantively unreasonable. In Collector of Customs v. 

Nathella Sampathu Chetty (1962 (3) SCR 786) this Court observed: 

"The possibility of abuse of a statute otherwise valid does not impart to it any element of invalidity." 

It was said in State of Rajasthan v. Union of India "it must be remembered that merely because 

power may sometimes be abused, it is no ground for denying the existence of power. The wisdom 

of man has not yet been able to conceive of a Government with power sufficient to answer all its 

legitimate needs and at the same time incapable of mischief." (Also see: Commissioner, H.R.E. v. Sri 

Lakshmindra Thirtha Swamiar of Sri Shirur Meth (1954 SCR 1005). 

15. As observed in Maulavi Hussein Haji Abraham Umarji v. State of Gujarat. Unique Butle Tube 

Industries (P) Ltd. v. U.P. Financial Corporation and Ors. and Padma Sundara Rao (dead) and Ors. v. 

State of Tamil and Ors., while interpreting a provision, the Court only interprets the law and cannot 

legislate it. If a provision of law is misused and subjected to the abuse of the process of law, it is for 

the legislature to amend, modify or repeal it, if deemed necessary. 

16. The judgment of the Delhi High Court on which reliance was made was rendered in the case of 

Savitri Devi v. Ramesh Chand and Ors. In that case while holding that the allegations regarding 

commission of offence punishable under Section 498A IPC were not made out. Certain observations 

in general terms were made about the need for legislative changes. The complainant had moved 

this Court against the judgment on merits in SLP(Crl)......of 2003 entitled Savitri Devi v. Ramesh 

Chand and Ors. By order dated 28.11.2003 this Court observed, as follows: 

"Heard learned counsel for the petitioner.  Delay condoned. 

We do not see any merit in the challenge made to the order of the High Court in Criminal Revision 

No. 462 of 2002, on the facts of the case. The special leave petition is, therefore, dismissed. At the same time, we express our disapproval of some of the generalized views expressed in 

paragraphs 23 to 32 of the judgment of the High Court by the learned Single Judge. The learned 

Judge ought to have seen that such observations, though may be appropriate for seminars or 

workshops, should have been avoided being incorporated as part of a court judgment. Some of the 

views also touch upon Legislative measures and wisdom of legislative policy in substance, which 

according to the learned Judge need to be taken into account. There was no scope for considering 

all such matters in the case which was before the learned Judge. It is, therefore, appropriate that 

such generalized observations or views should meticulously avoided by Courts in the judgments." 

17. Above being the position we find no substance in the plea that Section 498A has no legal or 

constitutional foundation. 

18. The object of the provision is prevention of the dowry menace. But as has been rightly 

contented by the petitioner many instances have come to light where the complaints are not 

bonafide and have been filed with oblique motive. In such cases acquittal of the accused does not in 

all cases wipe out the ignominy suffered during and prior to trial. Sometimes adverse media 

coverage adds to the misery. The question, therefore, is what REMEDIAL MEASURES can be taken to 

prevent abuse of the well-intentioned provision. Merely because the provision is constitutional and 

intra vires, does not give a licence to unscrupulous persons to wreck personal vendetta or unleash 

harassment. It may, therefore, become necessary for the legislature to find out ways how the 

makers of frivolous complaints or allegations can be appropriately dealt with. Till then the Courts 

have to take care of the situation within the existing frame work. As noted above the object is to 

strike at the roots of dowry menace. But by misuse of the provision a new LEGAL TERRORISM can 

be unleashed. The provision is intended to be used a shield and not an assassin's weapon. If cry of 

"wolf" is made too often as a prank assistance and protection may not be available when the actual 

"wolf" appears. There is no question of investigating agency and Courts casually dealing with the 

allegations. They cannot follow any straitjacket formula in the matters relating to dowry tortures, 

deaths and cruelty. It cannot be lost sight of that ultimate objective of every legal system is to 

ARRIVE AT TRUTH, PUNISH THE GUILTY AND PROTECT THE INNOCENT. There is no scope for any preconceived notion or view. It is strenuously argued by the petitioner that the investigating agencies 

and the courts start with the presumptions that the accused persons are guilty and that the 

complainant is speaking the truth. This is too wide available and generalized statement. Certain 

statutory presumptions are drawn which again are rebuttable. It is to be noted that the role of the 

investigating agencies and the courts is that of watch dog and not of a bloodhound. It should be 

their effort to see that an innocent person is not made to suffer on account of unfounded, baseless 

and malicious allegations. It is equally undisputable that in many cases no direct evidence is 

available and the courts have to act on circumstantial evidence. While dealing with such cases, the 

law laid down relating to circumstantial evidence has to be kept in view. 

19. Prayer has been made to direct investigation by the Central Bureau of Investigation (in short the 

'CBI') in certain matters where the petitioner is arrayed as an accused. We do not find any substance 

in this plea. If the petitioner wants to prove his innocence, he can do so in the trial, if held. 

Held : The Writ Petition is accordingly disposed of. 

Nadeem Qureshi (Advocate/ nadeemqureshi1@gmail.com)     24 September 2011

Dear ravindra

if you have the recording of the statements of your wife and his family that all allegation are false and manupilated then go high court for quashing this FIR and if you are realy a true men then the proceeding against your wife and her family u/s 182 IPC

1 Like

Leave a reply

Your are not logged in . Please login to post replies

Click here to Login / Register  



Post a Suggestion for LCI Team
Post a Legal Query