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That section makes it criminal for a husband and his
relatives to subject a married woman to cruelty is which is likely to drive a
woman to commit suicide or cause grave physical or mental injury to her, and
harassment with a view to coercing her or any of her relatives to meet any
unlawful demands of property.
The problems with the law were the result of a
“perfect storm” that was entirely unanticipated when the law was introduced to
protect woman in 1983. The elements of the storm included:
-Extremely vague statutory language.
-A separate law that prohibited the provision or
acceptance of a dowry.
-A custom that has been difficult to eradicate of a
bride giving a dowry upon marriage.
-A law that may only used by women against men.
-A provision that extends criminality to any of the
husband’s allegedly-participating relatives.
-A police force that is notoriously corrupt.
-A law that in the past allowed for the immediate
arrest of the husband and members of his family by the police on the basis of a
woman's complaint.
-A provision that the offense was non-bailable.
-A domestic relations procedure that is extremely
cumbersome and in many ways unworkable.
The result has been that when a marriage breaks up the
woman is often able to get her husband and many of his family members arrested
by simply filing a claim of cruelty and persuading the local police to arrest
the so-called wrongdoers. This is much more effective than initiating an
ordinary case for divorce.
In the case of non-resident Indians the process has
often proved calamitous for the husband. The spouses have an argument. She runs
off to India, often with the children and as many of the assets as she can
grab. She immediately starts a Section 498A case in India and then sues for divorce
and custody in India. The husband cannot step foot in India because he will be
arrested. Meanwhile his relatives in India are clamoring for him to settle up
with his wife because they have been in jail or are fearful that that will
happen.
The Supreme Court of India has described such conduct
as “legal terrorism.” The chairperson of one of India’s State Commissions for
Women has asserted that, "Many women are using 498A of the IPC (anti-dowry
law) to terrorize their husbands and his families.” She called it a “cruel and
wicked design to blackmail husbands and in-laws."
As recently as January 31, 2009, Justice K. G.
Balakrishnan, the Chief Justice of India, addressing India’s National
Commission for Women, asserted that Section 498A is being “grossly misused” and
that relatives not involved with a matrimonial dispute were often unfairly
implicated.
The U.S State Department has warned Americans that:
“Furthermore, since the police may arrest anyone who
is accused of committing a crime (even if the allegation is frivolous in
nature), the Indian criminal justice system is often used to escalate personal
disagreements into criminal charges. This practice has been increasingly
exploited by dissatisfied business partners, contractors, estranged spouses, or
other persons with whom the U.S. citizen has a disagreement, occasionally
resulting in the jailing of U.S. citizens pending resolution of their
disputes.”
Let us hope that some of the worst excesses of the
draconian law have now been reduced by the recent procedural changes.
