New Delhi: “There are too many Atul Subhashs in India today, they just don’t take such a drastic step,” says a 52-year-old corporate finance employee. He and his wife tied the knot in 2002. Now divorced, he is fighting multiple cases in different cities, including one pertaining to domestic violence. For him, hearing about Atul Subhash’s suicide in Bengaluru earlier this month—prior to which Subhash blamed the multiple criminal cases his wife and her family had slapped against him—invoked feelings of sadness and irritation.
Subhash’s suicide note and his last few videos were a detailed account of his alleged harassment at the hands of the legal system. His death has since raised alarm bells against the purported “misuse” of Section 498A of the erstwhile Indian Penal Code (IPC), and now Section 85 and 86 of the Bharatiya Nyaya Sanhita (BNS).
But, legal experts and practitioners exhort critics to look at the entire ecosystem of a marriage, marital laws, and the various stakeholders involved, including police, mediators and the judiciary, instead of fixing blame on one woman.
Section 498A of IPC criminalises the subjection of a woman to cruelty by her husband and his relatives. Anybody found guilty can be punished with a jail term of three years, and a fine. Within a matrimonial dispute, the provision introduced an element of criminality, and allows criminal proceedings to be brought against not just the husband, but even his relatives.
The provision was added to IPC through an amendment in 1983 to deal with dowry deaths in the country, as a response to pervasive domestic violence, and with the understanding that limited legal recourse and social support systems often drove the victims to suicide.
Over the past two decades, allegations of the misuse of the provision have mounted. The Supreme Court has flagged cases being filed under the provision in the “heat of the moment” or with “oblique motives”.
According to the National Crime Records Bureau (NCRB) data for 2022, 1.4 lakh cases of cruelty by husbands or his relatives were reported that year, and the police filed chargesheets in 1.2 lakh cases. The provision saw the highest acquittals—at 35,998— among those invoked for crimes against women, and 7,076 cases ended as “final report false”.
Chandigarh-based criminal lawyer Viren Sibal says that usually a Section 498A case is followed by multiple litigations, like it did in Subhash’s case, including maintenance pleas and domestic violence cases—all of it leading to the objective becoming to “gain monetarily out of the whole situation”. Critics have claimed that these cases are often used as a bargaining chip by women to negotiate better terms of settlement in a matrimonial case.
Legal experts and practitioners, therefore, claim that allegations of misuse warrant serious examination.
However, they also point out that over the years, the contours of the provision have been softened, with restrictions on immediate arrest and mandatory mediation before an FIR is registered. They, therefore, demand that the discourse surrounding the “misuse” of the law needs to centre around systemic gender inequalities, and the various stakeholders who implement the law—from mediators and police officials, to judges.
“How can you address the question unless you look at each one of these institutions? How are the police functioning? How is dowry passing hands? Why are women being pushed out of matrimonial homes? Why are magistrate courts not giving orders under the domestic violence law, which is a civil law? And why has this country not passed a proper law relating to the rights of a woman on the breakdown of marriage?” Senior Advocate Indira Jaising asks.
Section 498A: Well-intentioned, but abused
The allegations of misuse of Section 498A of the IPC reached courts early on.
Even the Supreme Court was approached as early as 2005 to declare the law unconstitutional, on the ground that it was being “misused” for “persecution” of the accused. However, the court pointed out that the possibility of abuse of a provision does not make it unconstitutional. It noted that the object of the law is to “strike at the root of dowry menace, but by misuse of the provision, a new legal terrorism can be unleashed”.
The court was clear that the question before it was what remedial measures can be taken to prevent abuse of the well-intentioned provision, and fixed responsibility on the legislature to find out ways to deal with frivolous complaints.
Till the legislature does this, the apex court asserted, the responsibility lies with courts to take care of the situation in the existing legal framework. It was certain that the courts and investigating agencies deal with the allegations “casually”.
Since then, courts have continued to flag misuse of the provision.
Back in 2010, another two-judge bench of the Supreme Court had taken the stand that most complaints under Section 498A of the IPC were filed in the “heat of the moment over trivial issues without proper deliberations”.
However, these observations have also often displayed the court’s dilemma over a parallel increase in dowry harassment cases. For instance, the 2010 judgment said that the court had come across a large number of such complaints, which are filed with an “oblique motive”, but said in the same breath that the rapid increase in the number of genuine cases of dowry harassment are also a matter of serious concern.
Months before the new criminal code was implemented this year, a Supreme Court bench checked whether the provisions of the new Bharatiya Nyaya Sanhita 2023 had looked into the earlier suggestions by the apex court in this 2010 judgment to bring about changes in Section 498A.
Sections 85 and 86 of the BNS correspond to Section 498A of the IPC, but the provisions are the same, word for word. The Supreme Court highlighted this, once again requesting the legislature to look into the issue before the provisions come into force.
However, come 1 July, 2024, the section was re-introduced through the new criminal codes verbatim—leaving the debate around the provision open.
Days after Subhash’s suicide, the Supreme Court, in another unrelated case, said there was a growing tendency of misuse of the provision, noting growing allegations of it being used as a “tool for unleashing personal vendetta against the husband and his family by a wife”.
The law, it said, was being misused to get the husband and his family to comply with the “unreasonable demands of a wife,” the court added.
The Supreme Court has, therefore, fixed responsibility on the legislature, as well as the investigating authorities and courts, while noting that the role of investigating agencies and the courts have to be of “watchdogs and not bloodhounds”.
Course correction, making 498A ‘compoundable’
Not just criticism, the courts, the government and the Law Commission of India have also taken matters into their own hands, when it comes to Section 498A.
As early as October 2009, the Ministry of Home Affairs issued an advisory, citing allegations of misuse of Section 498A of IPC. Among other things, it directed creation of ‘mahila desks’ at police stations and ‘Crime Against Women Cells’ (CAW cells) at the district level to cater to complaints made by women.
It also said that in matrimonial disputes, the first recourse should be conciliation and mediation between the spouses and their families, and Section 498A should be resorted to only in cases, where conciliation fails and there appears to be a prima facie case.
In a judgment in July 2014, the Supreme Court noted that the provision has “a dubious place of pride amongst the provisions that are used as weapons rather than shield by disgruntled wives”. The simplest way to harass, it said, was to get the husband and his relatives arrested under this provision. The court had then ordered all state governments to instruct its police officers not to automatically arrest when a case is registered under Section 498A, and to first satisfy themselves if the arrest was even necessary.
As for the Law Commission of India, it has repeatedly suggested that Section 498A should be made “compoundable”, which means parties involved can arrive at a compromise while the case is under trial in a court, and the case can be discontinued on this compromise.
The suggestion has been made in at least four Law Commission of India reports—the 154th (1996), 177th (2001), 237th (2011) and 243rd (2012) ones.
A few states, like Andhra Pradesh, have already made it compoundable.
What data says
Data paints a bleak picture when it comes to Section 498A cases. According to NCRB, the number of cases registered under Section 498A jumped from 1,03,272 in 2018 to 1,40,019 in 2022. The number of cases categorised as “final report false” jumped from 4,950 in 2018 to 7,076 cases in 2022, while the number of acquittals grew slightly from 31,691 to 35,998 and convictions nearly doubled from 4,982 to 8,307 during the same period.
The number of cases that resulted in a compromise also increased from 9,693 in 2018 to 15,513 in 2022.
However, Jaising says once a husband settles a case with a woman and she is asked to withdraw the statement, the withdrawal may count as a “false” case, according to NCRB data.
Senior associate at law firm Karanjawala and Co, Rytim Vohra Ahuja, also says that the low rate of acquittal does not paint a picture of the on-ground reality, and not all acquittals are attributable to misuse of the provision. She explains that the standard for proving criminal offences in India is ‘beyond reasonable doubt’.
“Women who file such cases are often unable to discharge such a high burden to establish the offence and secure a conviction. After all, the cruelty which the provision refers to has been endured by her in a marriage which is a private space, and incidents of cruelty are not documented by the aggrieved in the manner of corporate documents,” Ahuja told ThePrint.
She also explained that witnesses of such incidents are difficult to come by. In addition to this, Ahuja also blames the investigation being carried out in a “lackadaisical manner”, and trials lasting for years.
Ahuja asserts that the provision was added to safeguard women from cruelty at the hands of their husbands and relatives in the backdrop of the socioeconomic fabric of the country, where women have typically been in disadvantageous positions. “While this is gradually changing, it cannot be said that women are at par with men in Indian society. The provision till date aids women who have genuinely suffered at the hands of their husbands/his family.”
He said…
However, despite safeguards put in place by courts and the MHA advisory, allegations of misuse continue.
Since the 52-year-old corporate finance employee and his wife began living separately in April 2015, he has faced multiple litigations—24 in total, he claims, including appeals—with four base cases in three different cities and appeals in the Punjab and Haryana High Court in Chandigarh.
“I left the house in April 2015, after which I was admitted to the hospital, because of accelerated blood pressure due to her massive ego tantrums. When the woman calls the police, they generally start with scaring the man, without any investigation,” he says, highlighting the role of the police, the lawyers and the courts in matrimonial disputes.
His wife filed a domestic violence case in Gurugram, one under Section 498A in Bahraich, a maintenance case in Lucknow, and another case to claim the house.
In February 2021, after a trial that lasted six years, a family court in Gurugram granted him divorce on grounds of cruelty to him, taking note of the multiple cases that his wife had filed against him in different cities.
The divorce decree, seen by ThePrint, says, “Though, seeking of legal opinion is no offence, however, if such legal opinion is abused by a litigant spouse and is used as a tool to inflict cruelty upon the other spouse, this in itself speaks volume of the conduct of the respondent (wife) towards the petitioner (husband).”
This order was upheld by the Punjab and Haryana High Court earlier this month.
However, the other cases against him remain pending.
…She said
On the other hand, a Delhi-based woman, who has also filed a Section 498A case against her husband, claims that the provision was her last resort. She met her husband while pursuing her MBA. After a three-year long distance relationship, the two got married in 2011 and she moved to Bhubaneswar to be with him. But, the long-distance relationship had not prepared her for what was to come over the next nine years.
“Within the first six months, he slapped me. He had a habit of throwing things. He broke a glass at home with a punch. He would get into this rage often … He would leave the house, disappear for two days … He would not stop drinking. Once he threw a bowl at me and I bled through my face,” she recalls.
The pictures of abuse now form a part of the legal documents submitted to the court in the Section 498A, domestic violence and divorce case filed by her in 2021.
She left his house in November 2019, along with their four-year old daughter. “I became suicidal. I was sending messages to my sister to take care of my daughter.”
The cases, she says, were her last resort, after she tried to negotiate a mutual divorce from 2019 to 2021. “I wanted to do it peacefully, for the sake of everyone … I wanted to keep it together for the sake of my child, my marriage, society, my upbringing … I know that legal cases don’t go anywhere, but they (her husband and his family) kept delaying the process and I was left with no choice.”
However, once the conversations failed, she decided to take the legal route. She has now filed a case under the Domestic Violence Act, a divorce plea, and has initiated proceedings under Section 498A of IPC. All these cases are currently pending, and were filed between August 2021 and December 2021. In conversations, she still lists down all the “wrongs” that she endured before took the decision to file the complaint—from tackling substance abuse to getting inappropriate messages from his friends. Since then, the court proceedings have witnessed allegations raising claims of her “enticing” men.
“Judicial systems drive the sane to death … Neither could I do anything nor is the judicial system helping women like us,” she says. Parallelly, she has been trying to put her life back together, consulting doctors and attending “healing and spiritual workshops”.
“But, I had left my job because his family wasn’t comfortable with it. The 9-10 years of a job break have ruined prospects for me. I’m being treated as a fresher wherever I go.”
‘Gharelu mamla’ (domestic matter)
One of the “safeguards” that have been put in place to prevent the growing number of cases under Section 498A of IPC is the mandatory mediation process, when a complaint is received under the section. Only once this mediation fails is when an FIR is registered.
At one such CAW cell in Delhi, the cell’s head and two enquiry officers explain that their effort at the cell before an FIR is registered is to save the marriage and convince the parties to arrive at a settlement.
“The problem lies in society. Women are still not being given equal place at home. Everybody has different problems. Some husbands keep drinking, others get violent, or don’t give her any money in hand … Where will such women go?” the head tells ThePrint.
Officials of the cell assert that their endeavour “in 90 percent of the cases is to aim for a settlement”.
“Most women don’t want to initiate legal processes right away. They just want their husband to be scolded or told sternly not to repeat the violence again,” the enquiry officer says. According to them, it is usually once lawyers get involved that counter-allegations and often exaggerated demands of maintenance or marital property are demanded to settle the case. However, Delhi High Court lawyer Ajunee Singh calls this mediation the most “regressive” aspect of the process. “This assumption that a certain kind of criminal offence is more likely to be settled by mediation not only categorises these criminal offences as frivolous and insignificant, but also belittles the grievances of the victim.”
According to her, the process is also often used “as a coercive method” to make the victim settle the matter and resume cohabitation with the accused husband after he tenders an apology and the duo signs a settlement.
A petition has been filed in the Delhi High Court by women who allege that they have failed to get any recourse from authorities despite suffering severe physical violence at the hands of their husbands for several years. They challenge the mandatory mediation requirement.
Their lawyer, Senior Advocate Rebecca John, told the high court last year that when a woman approaches a police station, police officers often term it as a “gharelu mamla” (domestic matter), and refer it to CAW cells.
Also Read: India’s gender equality reforms are incomplete. Atul Subhash suicide exposes the divide
Loopholes & need for legal reforms
Meanwhile, suggestions from lawyers to remedy this purported misuse disclose the need for robust legal reforms that go beyond the binary of victim-perpetrator narrative, and instead focus on creating mechanisms that can differentiate between genuine cases from frivolous ones, instead of taking away the remedy altogether.
Advocate Sibal asserts that he doesn’t want to discount the fact that dowry as a practice is not prevalent in the country. However, he says, “The claims often get exaggerated while filing complaints (under Section 498A on demands of dowry).”
He blames the provision itself being “loosely worded”, and the word “cruelty” being “cursorily” included in the law. “Whenever a woman goes to the police station and alleges that she has been subjected to cruelty … that is taken to be the gospel truth … No doubt the law is being misused,” Sibal says. He adds that the institution of a case under Section 498A introduced an element of criminality into a matter which would otherwise remain a “civil” dispute—dragging the husband and his family into the net of criminality.
According to him, there needs to be a mechanism in place for the court to be able to sift genuine dowry cases from others.
While Ahuja has represented both husbands and wives in Section 498A cases, she agrees that the provision has sometimes been misused by women only to exact a vendetta or to exert pressure on husbands to settle a matrimonial discord. Considering this, she says, the implementation of the provision needs to be scrutinised by courts and Parliament.
“Officials in Crimes Against Women Cell and judicial officers need to be trained to distinguish between cases of misuse and genuine invocation. Mechanical arrest by the investigating agency should be avoided in cases where Section 498A of IPC is invoked,” she suggests. Adding, “The issue is systemic and one legal provision should not be cherry picked from all the laws, which are subject to misuse. The challenge which needs to be met is the implementation of the provision to ensure that the object of the law is achieved.”
Who is to blame?
When fixing blame for the law under Section 498A, fingers are often pointed at multiple stakeholders within the criminal justice system.
Jaising points out that the Protection of Women from Domestic Violence Act, 2005 was passed to provide civil remedies to a woman facing violence—unlike Section 498A, which provides a criminal remedy.
“The DV Act is a very well-crafted law because it allows a woman to get a stop-violence order, coupled with the right to reside in a matrimonial home. The need for that law was that women were being thrown out of the matrimonial home. The underlying idea of the Act was to move away from the use of criminal law and start civil laws,” she explains.
However, she blames the judiciary for not having understood the 2005 law properly, let alone implementing it. “So in these kinds of situations, women are continuing to use Section 498A of IPC. The shift (from criminal remedy under Section 498A to civil remedy under DV Act) has not happened because the police and the judiciary have let women down.”
Women’s rights lawyer Flavia Agnes asserts, “Within the patriarchal setup that we are in, this law is very much needed, because women are very vulnerable in their homes, and the society is not equal.”
Agnes says that the police need to record women’s complaints properly, which she says does not happen currently. “Firstly they don’t record it at all, but when they do record it, they do it very vaguely. They don’t mention the nature of the offence or the frequency of the offence very specifically, which is why the impression gets created that women are misusing the law.”
Ahuja says that lawyers also play a pivotal role in such litigations, and need to exercise caution when advising their clients to invoke this provision.
In the 2010 Supreme Court judgment mentioned above, the court had also highlighted the responsibility of lawyers in ensuring that the provision is not misused. Lawyers, it said, should ensure that one complaint does not lead to multiple cases.
‘How come we get our priorities so wrong?’
Meanwhile, Singh asserts that the problem lies with the societal norms governing marriages in India. She explains that ‘Stridhan’ of a woman is still considered to be her share in her parental property, which is given away at the time of her marriage and is usually kept in the custody of her husband and in-laws, while the marriage expenses still continue to be largely borne by the wife’s family, and direct or indirect give and take of dowry continues. “Without an overhaul of these criminal and arbitrary practices in society, the safeguards provided in law against it cannot be done away with,” she says.
Jaising also points to a lack of a law to address the issue of distribution of marital resources. “What can a woman do when she is being thrown out of the home with empty hands? The woman may have contributed to the building of the marriage or the building of the assets, what are her rights? She makes a demand for what is due to her and she’ll be demonised,” she says.
Singh backs up this suggestion, saying that the entire framework of matrimonial laws requires an overhaul to incorporate a standardised framework for equitable distribution of matrimonial property. She also recommends inclusion of irretrievable breakdown of marriage as a ground for divorce, so that divorce proceedings don’t become a battleground for fixing blame.
“These two imperatives will eliminate the bouquet of litigation that the parties are embroiled in following the breakdown of a marriage, which includes the institution of criminal process under provisions such as 498A and 406 IPC,” she tells ThePrint.
Jaising also points to Subhash’s allegation that a judge demanded bribes from him for settling the case. “It’s a serious allegation which has led to the death of a person. Why are they not being called to account? Why is the police not being called to account?” she remarks. “Why is that not being investigated? That’s the first thing that should’ve happened. How come we get our priorities so wrong?”
(Edited by Mannat Chugh)
Also Read: Atul Subhash death is a weapon for men’s rights activists. They don’t care about men’s lives
This article is too complex to understand just like a legal case, it needs decluttering. The major problem is the broken legal system which LIVES OFF from the problems of society. The more the problems and legal cases, the richer the legal system gets. So they want the legal cases to continue so that they can loot the weak. As for Atul Subhash case, it seems that the husband demanded more sex from the wife which she somehow disliked and hence she resorted to keeping herself unclean. The husband should take the cue and adjust. The husband didn’t learn, or probably he assumed it his right. In any case he was wrong. A mere counselling from either of the parents should have sorted it out. The step of mistake was by the wife when she took money from her husband for her brother. When the marriage could not go on, it would have been a simple divorce case. That’s where the legal system FAILED, obviously for its selfish reason. The judge in this case is the main culprit. I don’t understand why was she not removed from her post and arrested?
Men who demand dowry should marry into the womens family rather than vice versa then there would be no meed for women to demand alimony. Change the cultural norms but every man will oppose it because they know women have to sacrifice much more in terms of lost opportunities in the carrer space and adjustments in emotional space than men.
There are women who misuse laws but 95% of marriages still breakdown because men misplace their priorities. They keep job, money making or seeking pleasure as higher priority items over ensuring family is a peaceful and virtuous place for everyone.
People should just stop getting married. Period
Every word of this article is sheer nonsense. Like alimony is the right of every married woman, dowry is the right of every married man. Cheers!
Courts aren’t doing anything. They are settling frivolous amounts in favour of women. People have to sell houses, lands and take loans to pay alimony. How is this justified? If dowry is wrong, how is alimony right?
Apoorva Mandhani has always been a weird combination of woke activism and pseudo-feminism. Add to it a natural flair for narrative setting and a commitment to the propagation of Left-liberal-secular propaganda. And you get good old-fashioned NDTV style journalism.
Would not be surprised if Ms. Mandhani goes on to attend Columbia (or any other hallowed Western mass communication institution) on a scholarship. Her dedication to the Left-liberal-secular cause has been nothing short of “exemplary”. The least the Left-liberal-secular cabal can do is to help her further her career through letters of recommendation for admission and scholarships at prestigious Western universities. Foot soldiers of the propaganda machinery must be amply rewarded for their loyalty.
Alimony & maintenance is a right of every married woman as she is the one who sacrifices everything & enters the unknown territory of her husband & in-laws.
I feel men need to be sensitised on this issue of gender justice & not make fun of alimony or maintenance.
Even crores of divorce settlement cant bring back the sacrificed dreams of the women who later face subjugation & ill-reatment. Just hope that existing norms will be made more stringent as this has caused deterrence in the minds of men & his family members. Good to see people talking about this.
If marital life is criminalized, let it be gender neutral. Women who inflict violence or cruelty and harass for money and property should also be prosecution by the same laws .
Such BS propagandist crap. Just rename it as Indira Jaising’s defence of her agenda and income sources! And this coming from Apoorva, who’s anyways dyed-in-the-wool woke liberal left feminazi (With a track record of ignoring, and downplaying men’s side of such stories, since years) to begin with. Where was the other side equivalent of Indira Jaising? Deepika Narayan? Amish Aggarwala? Just another propaganda piece. Perhaps, the issue was, expecting fairness and neutrality from you in the first place. Disappointing, disgusting