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WHAT IS THE ROLE OF SECTION 498(a) OF INDIAN PENAL CODE IN THE CASES OF DIVORCE? CAN IT BE FILED AFTER THE DIVORCE?
Section 498(a) of the Indian Penal Code 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.” This section basically deals with two very famous notions upon which the majority of divorce cases are filed by the wife. They are:
(i) Domestic Violence- A cruel act of the husband or relatives of the husband of mentally or physically torturing the wife is called domestic violence.
(ii) Demand for Dowry- A pressure on both the wife as well as her parents for the prize of the bride like a car, cash, house, etc. is called dowry.
In both these situations, the wife can take scary steps of taking her life herself or even she is forcefully killed by her in-laws and hence if an FIR is filed, they can be held liable and may have to suffer the punishment. It plays a vital role in the case of divorce as it may even result in instant divorce because it is a matter of criminal offense.
Yes, it can be filed after the divorce has already happened. It totally depends upon the extent of domestic violence and the merits that the parties have in the matter of the case.
– PREYANSI ANAND DESAIActions which are brutal in nature in order to cause harm and danger to the life of a woman establishes cruelty which hits her mental and physical well-being. Cruel or brutal behavior towards woman especially by her spouse is absolutely illegal which ultimately affects her social and personal life.
Indian penal code 1860 ensures protection of women from such brutality after her marriage caused by her spouse or any of his relatives. Section 498a clearly states cruelty as an offence caused by the husband or his relatives posing a threat to her life either by physical intimidation or mental pressure, punishable with sentence of three years along with fine.
Administration of such a brutal behavior by a husband after marriage compromises the existence of a marital relationship. As such cruelty propagates a ground for divorce leaving no chance of preserving such a relation, under Hindu Marriage Act, 1955. Mere apprehension of such a behavior which can pose a danger to her life can result in separation of the spouses.
The legality of such provision extends to the fact that the aggrieved can approach the court of law and can claim divorce under section 13(1)(a) suffering from such a coerced behavior causing mental distress and physical intimidation posing a threat to her existence.
Generally the reason behind such a cruel and inhuman attitude towards women is the greedy demands made by the husband asking dowry or other unlawful demands considering as their princely rights. The demands are accompanied with physical violence and verbal abuses with filthy language for disturbing the mental peace of the aggrieved. Mental torture and psychological distress further leads to destruction of the peaceful marital life.
In order to constitute cruelty, ordinary distress in normal course of marriage is not considered as brutal conduct. The act must be extraordinary leaving no chance of living with the spouse causing threat to the life and reputation. The conduct must be of such a nature that it becomes impossible for the wife to continue as a spouse in the current relationship accompanied with mental agony and harassment of mind and body. This can be clarified in the case of Naveen Kohli v/s Neelu Kohli.
Since it has been established that we can use the right of private defense when there is a reasonable apprehension of death, grievous hurt, injury, etc. But in such a situation, it becomes difficult to prove just basing our decision of right to use private defense only if there is the apprehension of death, injury, etc. in cases of abused women. Their perpetual state of mind is always in danger that they will be harmed and thus taking such a narrower lens will be difficult. Thus, we have to keep in her mental state and incapacity in calculating the proportionality of danger.
What is the difference between consideration and reciprocal promise? Is every consideration a reciprocal promise, or vice-versa?
It seems like consideration and reciprocal promise have a very thin line of difference between them but actually, they differ in many terms. Though they are the essentials of a valid contract, they differ in the way they are carried out. Consideration is a one-way process while the reciprocal promise is a two-way process just as the process of communication. Consideration is giving something in return to the act done while reciprocal promise involves giving consideration to the promisor by the promisee and also giving consideration to the promisee by the promisor. The reciprocal promise involves two considerations from both the parties to the contract to one other while consideration involves giving compensation to one party by the other party. Both of them are explained in Section 2(d) and Section 2 (f) of the Indian Contract Act, 1872. Section 2(d) says: “When, at the desire of the promisor, the promisee or any other person has done or abstained from doing, or does or abstains from doing, or promises to do or to abstain from doing, something, such act or abstinence or promise is called a consideration for the promise.” While Section 2(f) is defined as: “Promises which form the consideration or part of the consideration for each other are called reciprocal promises.” It is also true that every consideration is a reciprocal promise but every reciprocal promise is not a consideration. because of the same above distinctions between them. A reciprocal promise is a wider concept while consideration is a narrower concept. The consideration comes under the big circle of reciprocal promise.
For example- A proposes to sell his car for rupees 10,000 to B. B accepts this proposal. Here, the consideration is rupees 10,000 that B will pay to A for his car and the reciprocal promise is selling of car by A to B.
– PREYANSI ANAND DESAIConsideration and reciprocal promise have almost identical facades but they are different
from each other on many terms. These are the foundations of every agreement and a
contract con not be enforceable without any. In order to understand consideration and
reciprocal promise and the disparities between them, we may need to take three concepts into
consideration. The terms such as promise, reciprocal promise, and consideration are defined
under Section 2 sub-sections (b), (f) and (d) respectively of the Contract Act,1872.
The term Promise means the acceptance of a proposal. So, A offered to help B in her project
and B accepted it, a promise is created. The promise is not enforceable. Hence, B doesn’t hold
any legal obligations for A to comply with if he fails to do so. In other words, a promise only
creates anticipation.
The reciprocal promise involves two promises. The parties to a reciprocal promise may hold
the consideration or any part of it. In the above case, B offers A, a motorcycle. Here, B
commits a reciprocal promise. So, both are obliged to perform certain acts for each other
that are not contingent and mutual which are legally binding. Such promises can be
explicitly made conditional as well which involve contingency of the promise of another
person. It also can be concurrent which includes multiple contingent events from either
party. Both are forms of reciprocal promise and can be treated as exclusive contracts where
consideration from both parties is involved.
In case, where a promisee in order to fulfill the desire of a promisor does, or abstains, or
promises to do an act is called consideration. The promise here has a price that is
enforceable. It does not necessarily have to be beneficial to one party and detrimental to others. So,
an agreement involves both reciprocal promises and consideration to give the effect a valid
contract.What is the difference between consideration and reciprocal promise? Is every consideration a reciprocal promise, or vice-versa?
Firstly we have to understand the difference between an Act and a Promise. Anything which is done right away is an Act and anything which is to be done aftermath is a promise. E.g. X gives a cycle to Y and in return, Y will pay Rs 1000 after one month. Here, what X has done is an act and what Y has done is a promise.
In my opinion Consideration and Reciprocal Promises are two different things. Consideration is defined in Section 2(d) of ICA, 1872 and Reciprocal Promises is defined in Section 2(f) of ICA, 1872.
I would not go what is written in the Bare Act. In simple language, Consideration would generally mean ‘compensation’ for doing or omitting to do any act or deed. It is also referred to as ‘quid pro quo’ means something in return for another thing. Such a consideration should be a lawful consideration. But, Reciprocal Promise means promise in return to promise as a consideration to former promise. Simply speaking, under Reciprocal Promise both parties promise each other to do something in the future. So, the first promise forms the consideration for the second promise and second promise forms the consideration for the first promise. So, both are reciprocal or opposite or against each other.
In my opinion, every consideration is not a reciprocal promise and vice- versa is also not true because there is a major difference between these two. Consideration is a one-way process that means one party has to give something from his side in return to what he got from the other party but Reciprocal Promise is a two- way process that means both parties promises each other to do some act in the future as consideration for each other promise.First of all I would like to state the section,
Sec 2(d) defines ‘Consideration’ as – “When, at the desire of the promisor, the promisee or any other person has done or abstained from doing, or does or abstains from doing, or promises to do or to abstain from doing, something, such act or abstinence or promise is called a consideration for the promise.” Sec 2 (f) defines ‘Reciprocal Promises’ as – “Promises which form the consideration or part of the consideration for each other, are called reciprocal promises.”
I will try to explain between the two concepts with the help of an example.
For instance, in the case of sale of immovable property, the vendor will propose the sale of certain house for a consideration subject to certain conditions. If the purchaser accepts the proposals and performs the reciprocal promise of paying consideration or part of consideration, the acceptance is absolute.
Reciprocal promise is promises by both the parties, so in this example, one party promised to sell his land for a certain consideration whereas other promised to pay consideration to buy that land. This is reciprocal promise and it has been constituted or formed the consideration for both the parties, consideration here means that both the parties have promised to do a certain act. Therefore reciprocal promise is like a bigger umbrella and it is the basis for the consideration for both the parties. (B Rajamani v. Azhar Sultana & Others LNIND 2004 AP 1466)
To understand the concept better we may now take another example of a lease.
A ’lease’ of a building involves two promises: (1) by the lessor to transfer his right to enjoy his premises to the lessee in consideration of the latter’s promise to pay rent to the former, and (2) by the lessee to pay rent and to abide by other terms of the lease in consideration of the lessor’s promise to transfer his right to enjoy the building to the lessee as aforesaid. Thus, it can be said that the promise of the lessor forms consideration to the promise of the lessee and vice versa. These promises may be described as reciprocal promises within the meaning of S. 2 (f) of the Contract Act. (Nutan Kumar v. IIND Additional District Judge, Banda LNIND 1993 ALL 220)
Therefore, these two concepts have a subtle difference, but through these examples one can categorically differentiate between the two concepts.Sec 2(d) defines ‘Consideration’ as – “When, at the desire of the promisor, the promisee or any other person has done or abstained from doing, or does or abstains from doing, or promises to do or to abstain from doing, something, such act or abstinence or promise is called a consideration for the promise.” Sec 2 (f) defines ‘Reciprocal Promises’ as – “Promises which form the consideration or part of the consideration for each other, are called reciprocal promises.
According to the definition stated in section 2(d) consideration can be considered as when the promisor promises to do something or promises not to do anything this act is called consideration of the promise. When such promises form an agreement, it is called Reciprocal Promises.
According to the definition given in section 2(f) reciprocal promises are a part of the consideration or form the consideration for the contract. A reciprocal promise is a promise for promise which makes an agreement.
“Is every consideration a reciprocal promise” Consideration can usually be called as reciprocal promise as a promise in an agreement by the promisee to the promisor is called consideration. Similarly, a reciprocal promise is a promise for a promise and consideration is a reciprocal promise, but may vary according to the situation and transaction that took place. Consideration is usually the cost of the promise given by the promisor to the promisee. It can be said that some value against the promise is given to the promisee is a consideration. The value of consideration may vary in each transaction. For example: – money, or a promise to do something or not to do something.
“Is every reciprocal promise a consideration” Reciprocal promises are generally not considered as consideration. Reciprocal promises are a set of promises from both the parties who agree to come into a contract. Reciprocal promises lead to the formation of an agreement. But there may be exceptions in the statement according to the transactions taking place.In IPC sections 87- 94 comprises the consent and compulsion in any crime. It discusses the extent of independence of making consensus, in what manner, by whom and involvement of a third party providing consent on someone else’s behalf.
sec.87- i> absence of mens rea
ii> Absence of knowledge of death or grievous hurt but knowledge of risk is present.
iii> consent should be from a major.
iv> consent can be either expressed or implied
sec.90- what is NOT a consent?
i> anything done out of fear of injury(mental or physical)
ii> under misconception of fact
iii> the person to whom it is given, knows or has the reason to believe that the consent was given under fear or
misconception.
iv> any consent given by an insane person.
sec.88- i> consent( subjected to provision of sec.90)
ii> absence of mens rea
iii> knowledge of death or grievous hurt is present
iv> intension of grievous hurt is present but not that of death.
sec.89- i> minor less than 12 years of age.
ii> consent is given by parents or guardian
iii>in good faith
iv>for benefit of the child
v> knowledge of death or grievous hurt is present
vi> intension of grievous hurt is present but not that of death.
sec.92- i> consent is given by a third person
ii>in good faith
iii>for benefit of the person
iv> knowledge of death or grievous hurt is present
v> intension of grievous hurt is present but not that of death.Chapter four of Indian Penal Code provides the general exceptions to the crime which are based on the absence of guilty mind i.e. Mens Rea. General exceptions are divided into 2 types:-
• Excusable Defenses
• Justified DefensesThe word consent is not defined in the code but its general meaning is to agree for something. Consent should be given freely and Indian Penal code proves it as an exception. It is a justified defense which is governed under Sec 87, 89 & 92 of the Code. Volenti Non Fit Injuria is closely related to concept of implied consent. There are two types of consent:-
• Express Consent
• Implied Consent.
In other words, a person who has committed an offence may escape from liability due to the application of general exceptions. The burden to prove all the elements of a crime and establish the guilt of accused never shifts from the prosecution. Section 90 of the code defines consent in a negative manner and provides for what does not amount to consent. Section 87 is based on the concept that every person is the best judge for himself and that’s why he will not consent to something which will hurt him. But as a whole the immunity under this exception is not extended to offence of murder and an act against the state. The defense of consent is available where the victim consents to activity occurring. Consent is not valid where it is given under fear or injury or by intoxicated person.
Therefore, as a whole consent can be considered as a general exception to the code but it is not extended to murderSection 91 of IPC is a proviso to Sections 87, 88 and 89. Sections 87, 88, 89 categorically mention that consent will only condone the act causing harm to the person giving the consent, which will otherwise be an offence. Acts which are offences independently of any harm which they may cause will not be covered by consent given under Sections 87, 88 and 89. Such acts can be: causing miscarriage, public nuisance, offences against public safety, morals etc.
If one considers the example of causing a miscarriage, then it is not only an injury to the woman alone, but an offence against the life of the child as well. Ergo, the mother’s consent will not be considered as the consent of the child and the person causing a miscarriage will not be absolved from prosecution by claiming consent as a general defence. Consent can be given to condone a harm caused to the person concerned, but not an injury caused to someone else, who never consented to it, (Ademma, (1886) ILR 9 Mad 369) consent will not condone a man from criminal prosecution in respect of offences against the State, public health, safety, convenience, decency, morality and the like. Thus obscene publications, indecent exhibition and public nuisance, etc., all such acts are acts which can come under the ambit of Section 91.Under I.P.C in chapter 4 General Exceptions it covers a very important aspect i.e section
92:-
Act done in good faith for benefit of a person without consent it clearly states that no
communication which is made in good faith is an offence by reason of any harm to the
person in whose favour it is being made is just for the benefit of such person ,
circumstances evolve where it is impossible to take consent ,done in good faith for
benefit of such person,wherein person doesn’t have any guardian to obtain consent at the
time of taking consent,that the person is incapable of giving his/her consent .It is a kind
of defence available to the person who is accused of any offence by showing the other
side of the card that how the situation was lacking the principle of criminal intention and
any intention to cause any harm behind such act and to making sure court of law believes
in it aswell.
Exception to the given section
1.If the person accused of an offence does an act with an intention to cause death ,harm or abet
such an offence and tries covering his/her offence under this section is not capable of taking
blanket under this section
2.if the doer knows by doing such an act can cause harm,death cannot take plea under this
section.
3.if the doer abets someone to commit an offence can’t be protected under this section.
Lets clearly see it with the help of an example when a person can be protected under given
section:-
Take a plea:-
Tina is on 9th floor with her 2 yr old child and her flat is on fire in order to save her child she
throws him out of the window to save him from fire wherein people are standing holding a
blanket to save the child now Tina knows throwing her child out of the window can cause his
death but does that in good faith then Tina in the given situation has not done any offence
And cannot be held guilty under the given situation
This exception basically helps doctors, lawyers and other professionals to be protected by any
kind of information which is given by them in good faith and reasonable care must be exercised
while making such communication.Intention can be explained as something which is planned prior to performance of a particular act. Intention involves aspiring about what is ought to be done by an individual before executing it. It needs an advance thinking process leading to a future act by one or more than one individual. Object means the aim or the effort in order to make an act possible. In order to formulate an objective for doing a particular act it is not necessary to have a prior thinking before execution.
Section 34 of the Indian Penal Code 1860 states that the criminal act done by more than two persons requires criminal intention of all the members committing a crime in order to be liable to commit that act. The crime committed by bunch of such members is liable under the act as if done by an individual alone. In order to establish a crime under section 34 of the Indian Penal Code 1870, some criminal act, several persons and common intention is essential.
Criminal act committed by several persons must have collective and similar state of mind where each of them is performing an act and are therefore liable possessing common intention. This depicts the unity of criminal intent in the minds of the individuals similar to a single person punishable for committing a crime. The act specifies the fact that if there is a presence of common intention, that will certainly lead to the presence of common responsibility and thus all the individuals are liable for committing a crime collectively.
Section 149 of the Indian Penal code 1860 on the other hand states that any criminal act done by an individual being a part of an unlawful assembly is liable for the crime committed or likely to commit with the same objective of the assembly.
This creates a joint liability for all the members when a criminal act is committed by any member of the assembly. The nature of the assembly can be determined by the plans and discussions done prior to the act performed. It is essential to have the members to join the assembly voluntarily prosecution of the common object.
Section 34 requires presence of more than two members while section 149 requires more than five. In order to constitute common intention, intention can be of any nature. While a single object is required to constitute a criminal act under section 149. Active participation of all the members makes an act crime under section 34 while in an unlawful assembly if some members are not directly involved in doing an act, it still constitutes a crime under section 149. Advance preparation must be done before committing an offence under 34 but no prior planning is necessary for having a common objective under section 149.Section 34 – acts done by several persons in furtherance of common intention.
Section 149 – every member of the unlawful assembly guilty of offence committed in prosecution of common object.
1. Existence of common intention of accused persons is basis of liability under section 34. Under section 149 existence of common object or mere knowledge that an offence can be committed is basis of liability.
2. Under section 34 common intention is undefined and unlimited. But under section 149 common object is defined and is limited to the five unlawful objects.
3. In common intention, there must be a prior meeting of mind as well as there is an obvious act which must be performed as common intention is there. But common object may not require a prior meeting of minds and it is possible that common object of unlawful assembly may be one and the intention is different.
(Other points of differentiation in section 34 and 149)
4. The criminal act done as per section 34 requires two or more persons with a pre-arranged plan but as per section 149 five or more persons are required and it is not a result of pre-arrange plan.
5. Active participation in crime is necessary for application of section 34. Merely membership of unlawful assembly would be sufficient for the application of section 149.
6. All the persons involved in a crime are equally liable in section 34 but in section 149 all persons may or may not be liable.Both Common object and Intention are phenomenal term used in the situation where many people are involved in the unlawful act. In Indian penal Code, section 34 defines common intention and in section 149 common object is defined. The difference is that in common intention every member should be the part of act and everyone’s responsibility is like to manner expectation is essential and at the point when a criminal act is finished by a few people in facilitation of the basic expectation of all, every one of such people is obligated for that act in a similar way as though it were finished by him alone and in common object at least five people is necessary and unlawful assembly is important and liability is vicarious.
Under Common intention under needs prior meeting of minds all the accused persons must meet together before the actual participation in unlawful act. Under common object , prior meeting of minds is not necessary. Mere importance of an unlawful assembly at the time of commission of the offence is needed.
Section 34 Participation of individuals in wrongdoing is a significant way, in any event, standing individuals who in a roundabout way help in appointing of wrongdoing are likewise indicted and in Section 149 simple enrollment of the people of an unlawful get together is adequate enough for indictment.
Both Section 149 and Section 34 of the Indian Penal Code manage an individual’s affiliation that gets answerable for discipline for the demonstration they submit. It isn’t fundamental to demonstrate that all of them was occupied with the clear demonstration to consider an individual vicariously liability under IPC Section 34 or Section 149.
Section 34 requires some dynamic inclusion, especially on account of a wrongdoing including actual maltreatment. Section149 doesn’t include dynamic contribution and the obligation comes from the simple enrollment of the unlawful get together with a typical target.
