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Criminal Defenses & Important Evidences on behalf of Husband & his Family Members in Cases of Domestic Violence

 > Anticipatory Bail & Regular Bail  > Criminal Defenses & Important Evidences on behalf of Husband & his Family Members in Cases of Domestic Violence

Criminal Defenses & Important Evidences on behalf of Husband & his Family Members in Cases of Domestic Violence

The law in India is well settled that, false complaints reported to the police or any concerned authority by either of the spouses against another for mistreatment, abusive behaviour on demand of dowry, shall amount to cruelty. The legal procedures have been well established on the record that false, baseless, scandalous and any sort of unapproved complaint against the husband to anti-dowry cell and allied departments harrows the experience for the husband and with regards to the circumstances of such cases, this will amount to cruelty and is sufficient to prove her intention to dessert the matrimonial home (Smt. Krishna Banerjee vs Bhanu Bikash Bandyopadhyay, AIR 2001 Cal 154). However, Indian courts have not yet laid down any hard and fast rules to construe and determine what conduct or act would constitute cruelty in a given case. The court emphasizes the following factors – education, social status, physical conditions, the vulnerability of either spouse, customs, manners, and the environment of the parties in deciding the particular state of affairs, in deciding a case of cruelty. The judge in deciding whether a particular conduct or complaint by either party constitutes cruelty must construe the conduct with reference to the matrimonial relationship as one, since what might be cruelty in a particular case, might not hold ground in another (Smt. Krishna Banerjee vs Bhanu Bikash Bandyopadhyay, AIR 2001 Cal 154). In fact, it has been reiterated that the wife’s conduct of making ugly and derogatory remarks against the husband in the written submission and deposition shall also constitute mental cruelty. (Smt. Santana Banerjee v. Sachindra Nath, AIR 1990 Cal 367).

The provision under Section 498A of the IPC, 1860 empowers women to file a case against her husband, in-laws for subjecting her to cruelty in order to meet their unlawful demands such as dowry, which is a Non-Bailable offence. Usually, the accused persons are immediately arrested even in the absence of sufficient investigation and evidence, and if found guilty can be imprisoned for a term of up to three years and the imposition of a fine. In addition to this, the aforesaid Section is supported by Section 304B wherein, if a woman commits suicide within seven years of her marriage or has died in a particular circumstance that raises reasonable substantial suspicion, this will also subject her to cruelty and in such cases, the court is bound to presume that the suicide was nothing but abetted by her husband or such relative of the husband. This Section has always been surrounded by controversy and is more often used by disgruntled wives as a weapon rather than a shield to protect themselves from abusive behaviour. Thus, the Hon’ble Supreme Court has provided a much-needed discretion to the trial judges, to prevent the misuse of this section. The Supreme Court is well aware of the frequent misuse of the section has called it legal terrorism and has opined that for a charge under Section 498A, cruelty needs to be established for determining the gravity of the act which would have possibly driven her to commit suicide, and it is the duty of the magistrate to carefully authorize the detention of the husband, and this should not be done casually or mechanically. Furthermore, it also cast a duty upon the district legal services authority to constitute one or more family welfare committees to enquire into the matter and such committees must work on every report, that is received by the police and magistrate for complaints filed under Section 498A, within a period of one month. Considering how Section 498 of the IPC is a Non-Bailable offence, the Supreme Court has also held that in case the Bail Application has been filed with at least a day’s notice to the complainant or the public prosecutor, then it may decide on the same day as far as possible. A disputed dowry item which has been recovered from the accused may not be sufficient ground to deny bail by itself, provided that the maintenance of the wife and children can be protected through other legal recourses (Rajesh Sharma and others v. the State of U.P. and another, Criminal Appeal No. 1265 Of 2017). The next question that arises is regarding the legal recourses and steps available to a person who is subjected to a false dowry complaint under Section 498A of the IPC. The prime duty of the accused in such scenarios should be to collect all conversations, voice calls, and any other form of evidence that proves that she moved out of the marital bond without any valid reasons and that you neither demanded dowry nor had taken it at any point in time. If a domestic violence charge has been levelled along with allegations of dowry, then the best form of defense would be counterattack since often, the charges filed against the husband and his family members are on fabricated grounds, and thereby, it is essential for the husband to go back to his financial statements and make a detailed list of the goods exchanged as presents in addition to the monetary transactions that occurred in cash. Furthermore, in a situation where the wife has left the husband’s place after threatening him and his family, then it is viable for the husband to file for the restitution of conjugal rights and request the Court to impose certain conditions before they start living together again so that the husband and children do not suffer due to the wife’s absence.

In addition to all this, it is always advisable for the men to file counter cases against the wife, for stronger defense and expect an early statement from the court for the punishment of criminal conspiracy against the husband and in-laws (Section 120B, IPC); for giving false evidence to falsely prosecute the husband and in-laws (Section 191, IPC); for defaming the character and reputation of the husband and in-laws (Section 500, IPC); for criminal intimidation (Section 506, IPC). Furthermore, the husband and his family members can file a counter-complaint if he believes that the wife has filed a false complaint under Section 498 IPC if he has collected the necessary evidence, and he can file a suit for recovery of damages under Section 9 of the Code of Civil Procedure (CPC), 1908 if the wife breaks into the husband’s house thereby causing damage to his property before fleeing.

For the directions issued to the District & Sessions judge or any other judicial officer nominated by the former for adjudicating cases where a settlement has been reached, the court has been of the view that such settlements were not a correction expression of law and in non-compoundable criminal cases, it is only the respective High Court which has the necessary power to quash any criminal proceedings which have been initiated under Section 498A of the IPC. Thus, the trial court does not have the necessary jurisdiction for any such quashing, and the parties are free to approach the respective High Court for the same. (Lalita Kumari v. Government of Uttar Pradesh and others, Writ Petition (Criminal) No. 68 Of 2008). As per the guidelines laid down by the Supreme Court the district judge and any senior nominated judicial officer have the discretion to compound all connected cases arising from a matrimonial dispute between the concerned parties. Thus, the court can have a holistic view of the case. (Rajesh Sharma and Others v. The State of U.P. and another, Criminal Appeal No. 1265 of 2017).

There has been a significant surge in the number of false domestic violence allegations against husbands and their family members, and this keeps on increasing daily. This is a crucial issue that needs to be emphasized and recognized since it violates the basic human rights of falsely accused persons. Furthermore, Section 498 is non-compoundable, which makes it even more strenuous for husband and his family members. Even though the government has been repetitively establishing guidelines to amend the laws which are currently in operation to avoid the arbitrary arrest of husbands and their family members under Section 498A cases, there is a dire need to make certain distinct provisions for men in light of the egregious misuse of Section 498A.
Authored By: Adv. Anant Sharma & Lopamudra Mahapatra

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