• Sushil Kumar Sharma Vs. Union of India

  • Head Notes

    • Misuse of this provision of law (498A) amounts to unleashing Legal Terrorism. Citation: Sushil Kumar Sharma Vs. Union of India & Ors., Writ Petition (Civil)  141 of 2005, Judgment Dated-19.07.2005, Bench: Arijit Pasayat & H.K. Sema, JJ, Supreme Court Of India

    Full Judgment

    Supreme Court Of India

    CASE NO.:

    Writ Petition (civil)  141 of 2005


    Sushil Kumar Sharma


    Union of India and Ors.

    DATE OF JUDGMENT: 19/07/2005


    Arijit Pasayat & H.K. Sema


    Arijit Pasayat, J.

    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 victimized by unscrupulous persons making

    false accusations.

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

    that the allegations made regarding commission of offence under Section 498

    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 oblige motive and with

    a view to harass the husband, in-laws and relatives.

    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.

    Section 498A appears in Chapter XXA of IPC.

    Substantive Sections 498A IPC and presumptive Section 113-B of the Indian

    Evidence Act. 1872 (in short `Evidence Act') have been inserted in the

    respective statutes by Criminal Law (Second Amendment) Act, 1983.

    Section 498A IPC and Section 113-B of the Evidence Act include in their

    amplitude past events of cruelty. Period of operation of Section 113-B 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.

    Section 498 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 113-B reads as follows:-

    "113-B: 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 purpose of this section `dowry death' shall have the

    same meaning as in Section have the same meaning as in Section 304-B of the

    Indian Penal Code (45 of 1860)."

    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 304-B 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 304-

    B there is no such explanation about the meaning of `cruelty'. But having

    regard to common background to these offences it has to be taken 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

    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

    examines 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

    laws and relatives. The avowed object is to combat the menance of dowry

    death and cruelty.

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

    basic difference between the two Section 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.

    It is well settled that mere possibility of abuse of a provisions of law

    does not per se invalidate a legislation. It must be presumed, unless

    contrary is proved, that administrative 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., AIR (1956) SC 246.

    In Budhan Choudhry and Ors. v. State of Bihar, AIR (1955) SC 191 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.

    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

    of the person aggrieved.

    In Mafatlal Industries Ltd. and Ors. v. Union of India and Ors., [1997] 5

    SCC 536, 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, [1977] 3 SCC 592 "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] 1005.

    As observed in Maulavi Hussein Haji Abraham Umarji v. State of Gujarat,

    [2004] 6 SCC 672, Unique Butle Tube Industries (P) Ltd. v. U.P. Financial

    Corporation and Ors., [2003] 2 SCC  455 and Padma Sundara Rago (dead) and

    Ors. v. State, [2002] 3 SCC 533. 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.

    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

    complaint 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."

    Above being the position we find no substance in the plea that Section 498A

    has no legal or constitutional foundation.

    The object of the provision is prevention of the dowry meance. But as has

    been rightly contended by the petitioner many instances have come to light

    where the complaints are not bonafide and have filed with obligue motive.

    In such cases acquittal  of the accused does not in all cases wipe out the

    ignomy 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 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 assassins'

    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 strait jacket 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 pre-

    conceived notion or view. It is strenuously argued by the petitioner that

    the investigating agencies and the courts start with the presumption that

    the accused persons are guilty and that the complainant is speaking the

    truth. This is too wide available and generalized statement. Certain

    statutory presumption are drawn which again are reputable. 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 in

    innocent person is not made to suffer on account of unfounded, baseless and

    malicious allegations. It is equally indisputable 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.

    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

    The Writ Petition is accordingly disposed of.


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