The role of law is to provide equal protection and rights to all individuals, regardless of gender, caste and creed, however, it would not be false to state that from the past two-three centennial, women in our nation has been subjected to ultimate exploitation in the hands of society ruled by men and thus when our Constitution was drafted special provisions were made to guarantee a safe environment for Women. However, soon it was realised that the powers provided to women, which were meant to be a shield, are being used as a brutal sword.

As per the statistics published by National Crime Record Bureau, Ministry of Home Affairs under “Crime in India 2021 Statistics” total 4,28,178 cases were registered by women out of which 31.8% were registered under ‘cruelty by husband or his relatives’. Among these, conviction rate was just 17% in State/UT’s and 11.1% in Metropolitan cities. Most of the cases were either filed to teach lesson to the husband or to extort money under the pretext of violence. The Domestic Violence Act, 2005 and 498A are the most exploited laws against husbands in India and the same has been recognised by our judiciary through various judgments.  

Men hold a very vulnerable position as a victim under Indian Laws. There are almost negligible laws which provide staunch action for cases filed against wife either for violence or harassment. Let alone special act, the acts which are present which identifies the crime of violence or harassment are not gender neutral but favours women. Thus, men certainly face unique challenges and disadvantages, it is however important to note that the men as a group still enjoy many privileges and advantages over women in many areas of life. This article will state how a husband can protect himself from cases filed by his wife and claims and Rights which he has be it civil or criminal.

Suit for Divorce

• The Hindu Marriage Act, 1955, section 13 and 13B states ground of divorce and Mutual Divorce. Husband can avail divorce under the 8 grounds provided under Section 13 namely –
• Adultery
• Cruelty
• Desertion
• Conversion
• Mental Disorder
• Venerable disease
• Renunciation of the world
• Not heard of being alive for a period of 7 years or more.

Alternatively, if the wife agrees to file divorce, they can proceed u/s 13B i.e., divorce on mutual grounds, wherein both agrees for separation under accepted terms.

• However, if the divorce has already been filed by the wife, the wall of defence should consist of negating maintenance order, seek child custody (if required), rejection for claim of property. The Hindu Marriage Act, 1955, Hindu Adoption and Maintenance Act, 1956, Domestic Violence Act, 2005, and Section 125 of Criminal Procedure Code, 1973, are the acts under which wife can claim maintenance and custody. The reasoning behind that is that until a couple of decades ago, women were financially reliant on men and had no choice but to stay in miserable matrimony to ensure safety for themselves. However, the court needs to satisfy certain conditions before granting maintenance. Thus, the husband can thwart the case of wife if he could prove that: –
• There has been no neglect or refusal on the part of husband for wife,
• Wife is able to maintain herself and earning sufficiently,
• Wife is living in adultery,
•  Wife refuses to live with her husband without any sufficient cause,
•  They are living separately by mutual consent,
• Wife is unchaste which makes her disentitled to separate residence and maintenance from her husband,
• Wife ceases to be a Hindu by conversion to another religion.

Alternatively, a husband can also claim Maintenance under section 24 and 25 of Hindu Marriage Act, 1955. Under section 24 if a ‘deserving man’ who does not have independent income to suffice his needs and support his living can claim maintenance from his wife if his wife can afford to do so. Whereas, section 25 provides for the right to get permanent alimony.it obligates the wife to pay monthly or periodically certain gross sum for the lifetime of the husband. However, the court may modify the orders due to change in circumstances.

Case under Section 498A of Indian Penal Code,1860:

The criminal law of India was amended to inculcate offences concerning the cruelty and dowery based harms as the cases of cruelty by the husband and his relatives culminate in suicide or murder of the helpless woman concerned. Section 498A is one of the provisions inserted in criminal law through the act 46 of 1983, the offence was made non-bailable and non-compoundable with maximum punishment of three years. The section states: –

 Section 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 purposes of this section, “cruelty means”—

(a) anywilful 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 (1, n.d.).

However, a large number of women were witnessed to take undue advantage of the enormous authority afforded to them. This law was being inserted in cases to harass their husbands and in-laws and to gain unfair benefits for themselves. Women were seeking vengeance against their spouses use Section 498A to threaten and blackmail their relatives. The Hon’ble Supreme Court of India recognised these trends of male being falsely accused which goes against the spirit and letter of this provision. The Hon’ble court in case of Sushil Kumar Sharma v. Union of India and ors (2005), went on to describe this phenomenon as “Legal Terrorism”. After identifying the problem lying in the concerned law, the judiciary developed defensive mechanism for the husband and their relatives through precedents mentioned hereunder:

1. The court stated that petty quarrels would not come under the purview of “cruelty” (Manju Ram Kalita v. State of Assam).
2. The Proximity of residence of relatives with that of wife must be take into account while deciding the question of cruelty by relatives. ( Preeti Gupta & Anr. V. State of Jharkhand).
3. For regulation of arbitrary arrest under section 498A mandatory guidelines were issued in the case of Arnesh Kumar v. State of Bihar and another (2014) 8 SCC 273:-
4. Not to automatically arrest when a case under this section is registered but to satisfy themselves about the necessity of arrest under the parameter laid down under section 41, CrPC;
5. The Police officers are required to make a checklist under section 41(1) (b)(II), furnishing the reason and materials which necessitate the arrest, only when the report, in terms aforesaid, has been made to the satisfaction of Magistrate he may order for detention.
6. According to the judgment of Police office he may refrain to arrest the person after recording the reason for the same in writing.
7. Failure to comply this above action make the Police officer open for departmental action and contempt of Court.
8. Further directions under case of Rajesh Sharma v. The State of U.P 2017 and Writ petition no. 73 of 2015 namely Social Action Forum for Manav Adhikar and another v. Union of India to protect the husband and his relatives stating: –
9. If a settlement has been arrived at the parties can approach the High Court under Section 482 of the Code of Criminal Procedure and the high court keeping in mind the law laid down in case of Gian Singh shall dispose the same.
10. In case of persons ordinarily residing out of India impounding of passports or issuance of Red Corner Notice should not be routine.

Proceedings of Domestic violence

This is a pro-women legislation to carter the abuse, exploitation and manipulation of women under domestic circumstances. The object and reason of the act was enacted to provide a remedy under the civil law, except section 31 and 33 none of the provisions are penal in nature. Thus, the proceedings under DV Act do not partake the character of Criminal Proceedings resulting in lenient procedural recourse.

The orders which can be claimed by aggrieved wife under Domestic violence act are: –

1. Section 17 – Order for Residence in a shared household:-

The section states that every women in a domestic relationship have the right to reside in a shared household, whether or not she has any right, title or interest in the same and she shall not be evicted form the said house except under in accordance with the procedure established by law. However for the purpose of claiming the residence order, the residence claimed by the wife must be a ‘shared household’, a share household would only mean the house belonging to or taken on rent by the husband, or the house which belongs to the joint family of which the husband is a member. The claim for alternative accommodation can only be made against the husband and not against the husband’s in-laws or other relatives. (S.R. Batra and another v. Taruna Batra)

• Protection Order under Section 18: –

The Magistrate is prima facie satisfied that domestic violence has been committed, he may prohibit the respondent from:

• Committing, aiding, abetting act of Domestic violence,
• Attempt to communicate aggrieved person,
• Alienate any asset, operating bank lockers or bank account used or held by them or respondent alone, including streedhan or any other property,
• Committing any other act specified under the protection order.
• Residence Orders under Section 19 wherein the Magistrate may order
• Restraining the disposal or disturbance of possession by the aggrieved from shared household
• Direction of removal of respondent from shared household
• Restraining the respondent or his relatives from entering any portion of the shared household in which the aggrieved party resides
• Restraining the respondent from renouncing, alienating or disposing off the shared household
• Direction to secure alternative accommodation or any other reasonable condition as the magistrate seems fit in interest of justice
• Monetary relief under section 20 may be granted by the magistrate to meet the expenses incurred and losses suffered by the aggrieved person.
• Compensation orders under Section 22 can be granted only after an application has been specifically made in this behalf by the Aggrieved person, Suo moto compensation cannot be granted under section 22. (Sanjeev Kumar Agarwal V. Rashmi Agarwal & Anr.)
• Interim and ex parte orders are also granted under this act under section 23.

the Protection of Domestic Violence Act, 2005.

Counter Cases

Section 227 of Cr PC, 1973–  This section deals with discharge of case when filled on insufficient ground by proving that the wife has filed a baseless and bogus case solely for the purpose harassing or extorting funds from the Husband.

Section 120B of IPC, 1860– The husband can opt for charge under this section if he can prove from the facts and evidence that the proceeding instituted by wife is a planned trap which she has unfolded with the assistance and compliance of his relatives/family members

Section 167 of IPC, 1860– in case where the husband believes that some police Officer is framing him in collusion wife the husband may charge him under section 167 of the Indian Penal Code as it provides for punishment in case where public servant has framed an incorrect document with intent to cause injury.

Section 191 of Indian Penal Code,1860– this section provides for offence of giving false evidence. If the husband presumes that his wife or anyone is asserting false evidence to falsely implicate him he can object to the same before the court. This action could lead to non cognizable trail of the accused person on prima facie evidence which consequently make the charge upon him false.

Section 499/500 of Indian Penal Code,1860– Defamation is another offence which a husband can prove against his wife if he has been falsely implicated. Defamation is a charge wherein the reputation of the person has been prejudiced due to false implication of his image in society.

Section 506 of Indian Penal Code,1860:- Criminal intimidation proceedings can be initiated against the wife claiming that she is threatens to hurt herself or husband or husband’s family or property.

Section 388 and 389 of Indian Penal Code,1860:- Extortion by threat of accusation for an offence punishable for more life, life- imprisonment or more then sever or ten years, is another effective remedy which a husband can avail if the purpose of the case filed against him is extortion.

How to prepare for case:-

• Keeping record of all communications:
• Do not engage in any behaviour that could be perceived as threatening or aggressive.
• Document any incident that occur
• Collect documents or other evidence that may be relevant to the case. This could be text messages, photographs, witness statement, emails etc.
• Consider alternative dispute resolution is one of the options to evade long court cases. Arbitration, conciliation and lok adalats should be approached for settlement of case in peaceful manner.

Conclusion

Being in 21^st century our laws as compared to rest of the world are still back dated not only in date but in essence as well. Gender biased and discriminatory laws must be eradicated and uniform codification must be made to ensure equal stance of all citizens. Equitable differentia is essential however it must not be such that so as to make opposite party defence less. It is of paramount importance to note that even after the introduction of biased law (even if made for upliftment) such as 498A and domestic violence Act, the core issues of dormant section of society goes unattended and unreported. Moreover, there is a need for greater formation, implementation and awareness of laws to ensure that men and women both regardless of their gender can have right as well as means to access the same in case of violations.

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Author: Vaishnavi Tiwari

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