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498a, Ipc: Through the Looking Glass

Lawmaker Manu's oft-quoted statement, that women are not worthy of freedom, exhaustively underscores the Indian Paradigm that was sought to be negated by the legislature, when it set out to pass the Criminal Law (Second Amendment) Act No. 46 of 1983, introducing for the first time, to a nation seemingly never full of dowry deaths and cruelty to married women, Section 498A the debutante in a code which lacked the intrinsic aspect of protection to the hapless victim of marriage in a patriarchal society. The 20th century had been the Dark Age for women the world over, who had been subjected to different standards than men. They had been consistently oppressed in nearly all aspects of life, from political to personal, public to private. Women were always a weaker section of the society, which denied them basics such as education, nutrition and expression. Consequently, marriage too weighed against them; statistical testimonies being the number of dowry-related harassment and domestic violence cases that are on record from that era.

Section 498A of the IPC defined a new cognizable offence, namely, cruelty by husband or relatives of husband. It is directed against the husband and/or his relative, who is guilty of the offence of subjecting the wife of such husband to cruelty, and can be invoked by such wife, or daughter-in-law, or her relative, against the offenders. The term cruelty has been given a wide berth, a protectively, non-evasive connotation in the explanation to the section, and includes both forms physical as well as mental. The offence is non-bailable, non-compoundable and cognizable on a complaint made to the police officer by the victim or by designated relatives.

The legislatures bona fide attempt in re-asserting, through the passage of the aforesaid provision, a womans right to be treated with due care and respect, has been successful in its own right. It is only now that women are learning to use the laws put in place for their protection. This law has laid the foundation for the demand of a civil law to protect women and children. Domestic violence has since 1983 been recognised as a crime and also constitutes a considerable part of the workload of police, prosecutors and the courts.

However, 498A in leading the pack of Indian 'women-protection laws', and in assuming that wives are always honest victims of marital wrath, therefore requiring no proof of their claims before initiating action against the accused, quite unwittingly overlooks the possible emergence of a reverse trend in the aforesaid scenario. The victim turning into the abuser!

The section, today, has metamorphosized into a unilateral and indefeasible weapon in the hands of married women, which can be easily abused if intended. The scope and limitations of the section have not been defined and demarcated which makes the situation worse. Many instances have come to light where the complaints are not bona fide and have been filed with an oblique motive.

POLICE PROCEDURES: FIRST IN LINE FOR THE SCANNER!

No arrest can be made because it is lawful for the Police Officer to do so.

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. S.498A was intended, by the legislature, to be invoked by way of private complaint to the Judicial Magistrate First Class or the Metropolitan Magistrate, who will take cognizance of the complaint, if it is found to be up to his judicial satisfaction,and issue summons to the opposite party, directing them to apply for bail. Nowhere in this scheme, does a clause of unconditional arrest book a place. But evidently, the Police has pushed to the backward recesses of the systems memory, the fact that the existence of the power to arrest is one thing, while the justification for its exercise is quite another.The Police Officer must be able to justify the arrest apart from his power to do so. No arrest can be made without a reasonable satisfaction reached after some investigation as to the genuineness and bona fides of a complaint and a reasonable belief both as to the person''s complicity and even as so as to the need to effect arrest. A person is not liable to arrest merely on the suspicion of complicity in an offence. It is not imperative that in each and every cognizable offence, the accused must be arrested merely because an F.I.R. has been lodged against him. The officer in charge, if comes to the conclusion that there is no sufficient ground for entering on an investigation, shall not proceed to investigate the allegations made in the report, and in such a situation, he shall inform accordingly to the informant.

Thus even a special women-oriented law like the 498A itself, is untenable where statistics such as the one indicating arrest of 30,000 innocent women annually based solely on the F.I.R lodged by a living tortured daughter-in-law or sister-in-law, are concerned. The law was not designed as ultra vires the constitution, and never was its true implementation intended to give way to any such defence of the section.

If any special treatment need be given to the said section, it shall touch upon the fact that S.498A unlike regular penal laws is a matrimonial law. Levying of other penal sections in addition to S.498A is a sure indicator of abuse of the process to cause arrest for ulterior motives. This additional levying causes a repetition of charges, because the said section is not entirely bereft of the elements of dowry demand. This is a clear abuse of police powers to arrest, by abetting the woman and her side to authoritatively implement her ulterior design to commit extortion in the garb of a prosecution for cruelty.

About the author: Arjun Syal

LLB(Hons), 3rd year, Amity Law School, Delhi

Source: http://www.articlesbase.com/criminal-articles/498a-ipc-through-the-looking-glass-591927.html

Frequently Asked Questions

  1. QUESTION:
    What are the top ten countries with the highest cesarean section rate of birth?
    We have information from 2004 on England @ 22%, Italy @ 33%, Brazil @ 48% and the US @ 29%. Looking for 2006 statistics. We are also interested in the number of obstetricians per 100K pop. and the number of midwives per 100K pop.

    Please cite the authority or indicate where we can find the information ourselves. Thank you

    • ANSWER:
      I'm sure the U.S is still up there... sorry I don't have any stats for you, but I had a c-section in 2005, and honestly, it saved both my life and my baby's. My doctor had me try vaginally, it just didn't work out with a big baby boy- very healthy!

  2. QUESTION:
    C-section statistics?
    Yesterday somebody had asked a question about the legality of VBAC in Iowa. In searching for info to help her out I ran across a site with c-section statistics for hospitals in various states. And some of what I read was, bluntly, alarming. "Knowing" that the c-section rate nationwide runs about 30% didnt' prepare me for figures from individual hopsitals of 40%... 45 ... 50% or more. (One Florida hospital has a 70% rate!)
    Our local hospital has comparatively low rates -- 27%. The counties directly to the south and west of us have rates almost twice that high (44 and 45%). Are the populations there THAT might higher risk? I don't think so. In fact, the highest rates in the state (50%.. urg) are at a county hospital in a basically rural, white, working class/farm family part of the state. Of course the hospital websites make NO mention of this -- all of them rave about their homelike and supportive atmospheres, and show pictures of beautifully decorated birthing rooms.

    So -- question is -- what was your experience like? If you had a c-section did you feel it was justified/necessary? If you didn't have a c-section, did you ever feel you had to fight for your preference or choice? Do you happen to know what the figures are where you gave birth? Did you do any research when selecting OB and/or hospital?
    Why do YOU think rates are so high? What can be done to change it? SHOULD anything be done?

    If Pink RN is around, I'd love to hear her input on the subject.

    The site I looked at is:
    http://www.theunnecesarean.com/blog/2009/3/18/c-section-rate-rises-2007-us-cesarean-rate-hit-318-percent.html
    Doodlest: Yes, your point about teaching hospitals is valid. And I wasn't surprised to see the hospital associated with the large state medical school in the large capital city also coming in near the top of the statistics. But again, most of the top numbers are at county hospitals in rural or semi-rural counties, (100-300 births per year, typically) where women with really complicated pregnancies would probably be transferred to a near-by urban center ... like our local hospital -- 2000 births/year)
    Ah-- I didnt' even think about inductions. Possibly those small county hospitals are more likely to induce, so they can schedule the births for the convenience of the smaller number of available OBs? (At our hospital, [the single hospital in a mid-sized midwestern city] most OBs belong to a single large group practice, and the docs simply take turns being on-call at the hospital for 24 hour shifts. And the few independent OBs are well known for having MUCH higher c-section rates.)

    • ANSWER:
      I'm in the UK, but Csection rates here are a lot lower than in the US (around 1 in 5 births)- I don't know why but the cynic in me wants to blame it on the fact that doctors in the US make more money from a csection birth than they do a vaginal birth, which isn't a factor here as the NHS pay for the majority of births. Also, it seems in the US that a doctor likes to schedule induction as soon as a woman hits 40 weeks, which of course increases the cs rate, whereas here a woman is left to go 10-14 days over (providing she and the baby are healthy of course). The same with if a baby seems to be over a certain size- I've seen many Qs on here saying things like, "my OB wants to schedule induction at 38 weeks cos he thinks my baby is going to be about 8lbs"- as if a woman cannot birth a bigger baby vaginally. And even if she does go for labour she seems to lose confidence in ehr ability to do it, and I strongly believe mental attitude plays a big part in the success of a labour.

      Also, here epidurals are used a lot less, and of course they are a big contributing factor to whether a labour ends naturally or with a cs.

      And finally, I think the biggest one is a birth here is a lot more relaxed. A woman isn't constantly checked or examined- only upon arrival and then if the midwife suspects things aren't progressing as they should.

      Unless there is a complication a woman is encouraged to deliver with a midwife and her birth partner only, and it isn't high-tech or medicalised. Women are encouraged to listen to music, have candles, and try a range of different pain relief techniques that all contribute to a much more natural and less stressful environment for the mother. we don't automatically have IVs insterted, we're not strapped to a monitor throughout the labour, and the baby is usually delivered my a midwife not a doctor (and 99% of midwives are female, I've never come across a male one ever- I believe a woman needs another female in albour. Of course there are female OBs as well lol, but a male doctor could be worrying for a woman), making the process much more relaqxed and less intrusive.

      VBAC is also not only supported but encouraged (of course, depending on why the previous section was needed), with a 70% success rate of women attempting it delivering vaginally.

      BTW with my daughter (first baby) I had a 2.5 hour 2nd stage- I'm almost certain I'd not have been allowed to go this long in a highly medicalised birth. But I had a fantastic midwife who assured me my baby was fine, just at an awkward angle and was coming, just slowly lol.

  3. QUESTION:
    Just because you CAN give birth vaginally, why should you?
    I challenge you to give me a good reason why a woman should give birth vaginally instead of having a c-section.

    Sure, vaginal birth "without" complications is safer than cesarean birth for the mother. But what's to say you won't have a complication? There's no badge of honor for going through pain, and pain is all relaitive anyway. (and c-sections are painful) Besides, if you try to give birth naturally and end up having a c-section, then you've gone through twice as much pain.

    And, it would be pointless to argue that vaginal birth is better for the baby. Statistics don't tell the whole story. (just one example:) Sure, more babies born via c-section have imature lungs and breathing difficulties. But how many of those babies were delivered early due to complications that would have otherwise lead to death? We won't really know.

    The bottom line is, well never know what "could" have been.

    And, for the sake of argument, lets just assume that doctors are out for the health of women and babies. So why not opt for a c-section? Why give birth vaginally just because you can?

    • ANSWER:
      Because pushing something the size of a watermelon out of a hole the size of a lemon gives you a sense of accomplishment.


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