What is Section 498A all about? Why should we be worried about it? 

Typically Section 498A says: 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.

It is very interesting the way cruelty is defined. Obviously the legal jargon is called ‘any willful combat’ which is of such a nature as likely to provoke the woman to commit suicide or to cause grave injury or danger to life of that woman or harassment of that woman such or make unlawful demand of property or value. This is such an act where anybody at anytime can be entrapped. Because what is a willful combat? Any woman can suffer from a mental disorder and commit suicide. Then the onus is on you to prove yourself innocent. But it is not 498 A alone, it is generally applied with 406 (Criminal Breach of Trust) and 304 B (Dowry Death).  Now it is very difficult to prove whether a criminal breach of trust has happened or not. So these sections are by far the most abused sections of IPC and it has so happened that a husband comes to know of his wife’s extra marital affair and the wife in turn sues him by filing a case under these sections. These days even a live-in partner can slap 498A.

 
Is Section 498 A the most misused section? If yes, why?


I can’t say it’s the most misused. It is very difficult to say like that, but definitely it’s one of the most abused one. Because all you have to do is go and file a complaint. Even more misused is the Protection of Women from Domestic Violence Act , 2005, Section 12, under which anybody can go and say I have been a victim. From there on the proceedings will take place and will go on for years. It is a nightmare for the guy.     

 
Is there a way out of it if you do get entangled in one?

Till 2014 a lawyer could do very little except fight the case. Though the conviction rate was only 4 percent, everyone involved was arrested. Now you need special permission in order to either arrest the husband or the in-laws. A landmark judgment by the SC in 2014 said there cannot be any automatic arrest. You have to investigate the entire matter, have valid grounds before you can arrest someone. Now when do you slap a 498A? Mostly in cases of Illicit affairs. You suspect the wife of an affair and she goes into counterattacking mode and files a complaint. You are immediately checked. You cannot contact her, cannot clarify issues and you are completely entrapped. It also happens mostly in love marriages, where both the in-laws want it to end and provoke the girl to do so.  There have been cases when the 498 A was slapped to teach the in-laws a lesson, to settle past scores.

Does any medical condition come to the rescue? Say a man suffering from BPD (Bi-polar disorder) , can he be tried too? Given he is going to come up with different emotions at different times?  

Bi polar disorder can be from both sides. There are judgments from Bombay High Court and also the Delhi High Court where it was stated that it was the wife who had BPD and she would be loving at times and retaliate the very next moment. So it’s the BPD of the wife that comes in to play. However, the only alibi a guy can have with such cases is that he has a long history pertaining to the case. By that he might not be set free or be in a safer position but he will still be in a better position as compared to the rest. He will still have a chance to bat on. That might actually land him in a mental asylum instead of a jail. Having said it all, it is very difficult to prove that the guy is or was suffering from such a medical condition and committed the crime while he was in such a state.

Who can file the complaint? Is is limited to the victim/wife? Or the same can be done by the girl's parents/family members?

Generally the complaint becomes strong if the girl arrives. Because it becomes silly if someone else does it. She has undergone the torture assuming she is telling the truth. So it’s always better if the girl files the complaint. If the girl dies, normally 304 B will be slapped along with 498 A and the parents or the brother will do it. But if she is alive, it’s advisable that she goes and lodges the case.

On the personal front, how many cases have you tackled pertaining to this particular section?

Multiple cases. But I cannot talk to you about these as they are of confidential nature and they go on for years.

Any such case which you remember vividly?

There was this case where a woman wanted divorce from her husband within six months of marriage. She alleged that the man failed to satisfy her. Upon investigation it was found out that they were in an intimate relation for seven years where they had sex daily, prior to the marriage. The lady said that he was suffering from schizophrenia. The doctor said yes he was under mild medication, which she already knew. The Delhi HC granted the divorce but the Supreme Court turned it down saying it was no ground for divorce after the guy moved to the apex court. You see, 498 A is also used for quick divorce, but it cannot be used in isolation, some other sections must be used.
 

As you mentioned earlier that ‘partners’ too can slap 498 A, is it limited to straight couples? Or is it applicable for the LGBT community too?

I think the LGBT rights is still in the legislation state. I don’t think it is applicable currently. I will not be able to comment. But, I’m sure when their status is fully recognized by the government; they too can easily use this article.  

You are also an expert in cyber laws, do you think laws in India regarding Cyber Crimes are at per with the global standard?

No, Indian cyber laws are absolutely rudimentary and we are still in the stone age. Because, at the end of the day, the people who look after it are not IT professionals.

For example, let’s look at Delhi Cyber Crime department. Now we have people there who come from IPS. Say a DCP, who is typically a person who is assisted by two ACP’s and about 10 Inspectors who are there. Now these are persons typically from the law enforcement department who rose through the ranks. I have interacted with them and I find the guys are not trained. They are not well equipped and it’s surprising that they do not know things. They do not know what is an IP address.

Cyber crime conviction rate in India is the lowest. Government need to educate the law enforcing agencies against cyber crime. A lot of banking frauds take place like this, where it is generally initiated outside India from crime havens like Ghana, Ivory Coast, Nigeria, Cayman Islands, the British Virgin Islands, where some things will be done and they have very lenient laws. Actually somebody sitting in India will be committing the crimes and when you track the IP address you will find it’s generally outside India and with those countries India have no extradition treaty. So it is impossible to book. We opt for a reactive mode, but cyber crime is a pro active mode. The laws are not strong. By the time we set out for investigations, half the evidences are wiped out and when you catch hold of the crime, you find no trail of access to the computers or the servers.    

Considering Edward Snowden's case, if the government decided to keep a track on you without informing you, does that accumulate to cyber crime? Can you take a step against the government? 

Snowden’s case clearly proves that even the US government could do as much and nothing is going to happen. The government can always give the clause. Every government has arrived at the conclusion that if there is anything against national security you can be tried for treason.

In Delhi JNU cases, what are the charges for? Treason, that these guys were protesting against the government. Now these are genuine cases and I’m following very closely with an advocate who has been very vocal of that fact that these guys were actually uttering anti-India slogans. The conditional bail also states that it’s like an gangrene and when the gangrene spreads you have to amputate. There’s no other way. There was so much fuss about the judgment, but I think the lady judge was brilliant. It was a genuine case involving national security. And I don’t think the government will try and snoop on you and I, it’s done to very powerful people, where they have a lot of evidence there or to settle political score.We as general people should not be worried too much.


Is our law enforcing machinery equipped and informed enough to deal with cyber crimes? Do we lack technology?

No. We are very advanced as far as technology is concerned, but the will of the government is to be blamed. I think half the crime is committed with the patronization of the criminals. At the end of the day, you see for any murder either a big politician is involved or the guy is well connected. I’m not talking about a cyber crime where an e-mail account is hacked, I’m talking about a major banking fraud or financial irregularities or a major hack involving the intelligence.

How can a Pakistani guy hack into our intelligence databases? They tempt Army guys posing as females. These guys get honey-trapped and they divulge information. Even an army guy’s computer is not secured. The guy posing as a girl is actually from Pakistan, using a virtual IP address. We need to implement exemplary punishment which will act as a deterrent. Under the existing IP laws, most offences are bailable, so half the time you get away doing something wrong. We need more fast track courts dedicated to the cyber crime, because the number of white-collar crime is increasing. We also need judges who have moved from IT backgrounds to deliver proper verdict. Revamping of the whole model in India is needed.       

Can you site some interesting case or cases which we can know about and take precautions.

I was handling a case where this policeman sends a notice from Gmail. I told my client you don’t have to go. He asked me why and I told him that it’s not necessary as the policeman did not follow the rules. Now, this guy doesn’t even know that he is not supposed to send a notice from his personal account. And this is the type of guys we have who are investigating cyber crimes. He should be the first one to know that you cannot do such a thing. He should have sent it from an <.nic.in> id or from Delhi Police department id.