SECTION 498 A IPC: AN EVOLVING JURISPRUDENCE

Section 498A of the Indian Penal Code, often referred to as "the Anti-Cruelty Statute" has broadens the prohibitions laid out in the Dowry Prohibition Act, 1961 and expands its coverage to other acts of cruelty, threats, or violence related to dowry demands. Section 498 A IPC has been introduced in the statute in 1983 to protect the constitutional rights of liberty, dignity and equal respect for women who are deprived of their rights due to several social and cultural factors. Section 498A, IPC a substantive offence of cruelty by husband, in-laws and relatives of a married woman, is in debate due to various factors including its misuse by women. It has been noticed in many judgments of the Apex Court that many false cases are being filed against in -laws and relatives who have no connection with the crime. In most of these cases, women lodges FIR against the husband or his relatives due to a sudden emotional upheaval. Mostly complaints under s.498A are being filed with an oblique motive to wreck personal vendetta. In such cases the arrest of the accused under s.498A and the consequent remand of the accused in custody foreclose the possibility of reconciliation in future and thereby the matrimonial discord will continue and the future of the parties and welfare of the children is at stake. Thus the imminent arrest of the husband and relatives is counterproductive in false cases. In cases where the parties are ready to settle the cases amicably, since the offence is non-compoundable, the trial courts are unable to settle the cases. Parties need to approach the High Courts for finality of the disputes. Though the Law Commission in its 237th report recommended to make s.498A as compoundable, no amendment has been made so far. As far as the arrest of the accused is concerned, various High Courts issued guidelines emphasising the need to exercise caution before the arrest. In Preeti Gupta v. State of Jharkhand AIR 2010 SC 3363, the Supreme Court observed that “by misuse of the provision, a new legal terrorism can be unleashed”. Though section 41(1) b has been incorporated in the Criminal Procedure Code by Act 5 of 2009, regarding arrest, there is not much protection available to the accused in practice.The Supreme Court in Arnesh Kumar v State of Bihar (2014) 8 SCC 273 had issued several guidelines regarding the arrest of the accused in s.498A cases. In Rajesh Sharma & Ors v. State of U.P & Anr, the Supreme Court recently issued strict guidelines to Police and Magistrate prohibiting automatic arrest and the non compliance of the guidelines amounts to strict disciplinary and contempt proceedings and the court also directed the setting up district level Family Welfare Centres to scrutinise and investigate complaints by a wife of cruelty by the husband or his family before  the lodging of the First Information Report (FIR), which might leads to far reaching consequences.

According to National Crime Records Bureau (NCRB), Ministry of Home Affairs crime data, in 2005, for total 58,319 cases reported under Section 498A IPC, a total of 1, 27,560 people were arrested, and 6,141 cases were declared false on account of mistake of fact or law. While in 2009 for a total 89,546 cases reported, a total of 1, 74,395 people were arrested and 8,352 cases were declared false on account of mistake of fact or law. As per 2012 Statistics, for the year of 2012, a total of 197,762 people all across India were arrested under Section 498A. The Report further shows that approximately a quarter of those arrested were women that are 47,951 of the total were either mother or sisters of the husband. However most surprisingly the rate of charge-sheet filing for the year 2012, under Section 498A IPC was at an exponential height of 93.6% while the conviction rate was at a staggering low at 14.4% only. The Report stated that as many as 3, 72,706 cases were pending trial of which 3, 17,000 were projected to be acquitted. In 2013, NCRB pointed out that of 4, 66,079 cases that were pending in the start of 2013, only 7,258 were convicted while 38,165 were acquitted and 8,218 were withdrawn. The conviction rate of cases registered under Section 498A IPC was also a staggering low at 15.6%.

There has been wide spread news by many institutes and organization regarding the misuse of this section by women against their husbands to fulfill their illegitimate demands but, we cannot say all the cases are false. Every law has some provision which can be misused in one or other way hence, just because this section 498A is also being misused does not make any ground to abolish section 498A or to denude the sharp teeth of section. Even 243th Law Commission Report supports that misuse is no basis for abolishing section 498A.

The misuse has been judicially recognized in many cases like Sushil Kumar Sharma v. Union of India, Preeti Gupta v. State of Jharkhand, Ramgopal v. State of Madhya Pradesh, Savitri Devi v. Ramesh Chand etc.

In Sushil Kumar v. Union of India, case was related to constitutional validity of section 498A on the ground that it has grossly misused by married woman to harass and embarrass their husbands, in laws and his relatives by instituting vexatious and frivolous criminal proceedings. It was also contended that police and women crime cell more often than not, hound the accused persons threatening them of arrest, more so because the nature of the offence under section 498A is non-bailable and cognizable. To this contentions Apex Court rejected the petitioners contentions and held that mere possibilities of abuse of a statutory provision does not per se render the provision of law ultra-vires or unconstitutional.

Similarly, after Preeti Gupta v State of Jharkhand the Supreme Court observed that “serious re-look of the entire provision is warranted by the Legislature. It is a matter of common knowledge that exaggerated versions of the incident are reflected in a large number of complaints. The tendency of over-implication is also reflected in a very large number of cases” and though there are widespread complaints and even the judiciary has taken cognizance of large scale misuse, there is no reliable data based on empirical study as regards the extent of the alleged misuse. Although the judgments and Justice Malimath Committee’s Report on Reforms of Criminal Justice System supported the argument of misuse of the section, the Law Commission opposed it and opined that “the social purpose behind it will be lost if the rigour of the provision is diluted.” The abuse or misuse of law is not peculiar to this provision. The misuse can however be curtailed within the existing framework of law. For instance, the Ministry of Home Affairs can issue ‘advisories’ to State Governments to avoid unnecessary arrests and to strictly observe the procedures laid down in the law governing arrests. Further, the first recourse should be to effect conciliation and mediation between the warring spouses and the recourse to filing of a charge sheet under s.498A shall be only in cases where such efforts fail and there appears to be a prima facie case.

In many cases both the Supreme Court and various High Courts had issued directions to be followed for the arrest of the accused in Section 498A cases.

In Chander Bhan v. State, the Delhi High Court issued certain guidelines for arrest in the dowry cases registered under Sections 498-A/406 IPC that (i) No case under Section 498-A/406 IPC should be registered without the prior approval of DCP/Addl.DCP. (ii) Arrest of main accused should be made only after thorough investigation has been conducted and with the prior approval of the ACP/DCP. (iii) Arrest of the collateral accused such as father-in-law, mother-in-law, brother-in-law or sister-in-law etc. should only be made after prior approval of DCP on file. (iv) Police should also depute a well trained and a well behaved staff in all the crime against women cells especially the lady officers, all well equipped with the abilities of perseverance, persuasion, patience and forbearance. (v) FIR in such cases should not be registered in a routine manner. (vi) The endavour of the Police should be to scrutinize complaints very carefully and then register FIR. (vii) The FIR should be registered only against those persons against whom there are strong allegations of causing any kind of physical or mental cruelty as well as breach of trust. (viii) All possible efforts should be made, before recommending registration of any FIR, for reconciliation and in case it is found that there is no possibility of settlement, then necessary steps in the first instance be taken to ensure return of stridhan and dowry articles etc. by the accused party to the complainant.

In Arnesh Kumar v State of Bihar (2014) 8 SCC 273 the Supreme Court had issued several guidelines regarding the arrest of the accused in s.498A cases.

1. All the State Governments to instruct its police officers not to automatically arrest when a case under Section 498-A of the IPC is registered but to satisfy themselves about the necessity for arrest under the parameters laid down above flowing from Section 41, Cr.PC;
2. All police officers be provided with a check list containing specified sub-clauses under Section 41(1)(b)(ii); 6 (2014) 8 SCC 273
3. The police officer shall forward the check list duly filed and furnish the reasons and materials which necessitated the arrest, while forwarding/producing the accused before the Magistrate for further detention;
4. The Magistrate while authorizing detention of the accused shall peruse the report furnished by the police officer in terms aforesaid and only after recording its satisfaction, the Magistrate will authorize detention;
5. The decision not to arrest an accused, be forwarded to the Magistrate within two weeks from the date of the institution of the case with a copy to the Magistrate which may be extended by the Superintendent of police of the district for the reasons to be recorded in writing;
6. Notice of appearance in terms of Section 41A of Cr.PC be served on the accused within two weeks from the date of institution of the case, which may be extended by the Superintendent of Police of the District for the reasons to be recorded in writing;
7. Failure to comply with the directions aforesaid shall apart from rendering the police officers concerned liable for departmental action, they shall also be liable to be punished for contempt of court to be instituted before High Court having territorial jurisdiction.
8. Authorising detention without recording reasons as aforesaid by the judicial Magistrate concerned shall be liable for departmental action by the appropriate High Court.

Recently in Rajesh Sharma & Ors v. State of U.P & Anr, 2017 SCC OnLine SC 821, Supreme Court  had widened the guidelines to such an extent of appointing a Family Welfare Committee comprising of three members who are para legal volunteers/social workers/retired persons/wives of working officers/other citizens who may be found suitable and willing  in the light of the rising misuse of Section 498-A IPC , except in case offences involving tangible physical injuries or death. The Supreme Court emphasized the need for the involvement of civil society in the aid of administration of justice, apart from the investigating officers and the concerned trial courts being sensitized.

The following are the guidelines issued by the Supreme Court.

1. (a) In every district one or more Family Welfare Committees be constituted by the District Legal Services Authorities preferably comprising of three members. The constitution and working of such committees may be reviewed from time to time and at least once in a year by the District and Sessions Judge of the district who is also the Chairman of the District Legal Services Authority.

(b) The Committees may be constituted out of para legal volunteers/social workers/retired persons/wives of working officers/other citizens who may be found suitable and willing.

(c) The Committee members will not be called as witnesses.

(d) Every complaint under Section 498A received by the police or the Magistrate be referred to and looked into by such committee. Such committee may have interaction with the parties personally or by means of telephone or any other mode of communication including electronic communication.

(e) Report of such committee be given to the Authority by whom the complaint is referred to it latest within one month from the date of receipt of complaint.

(f) The committee may give its brief report about the factual aspects and its opinion in the matter.

(g) Till report of the committee is received, no arrest should normally be effected.

(h) The report may be then considered by the Investigating Officer or the Magistrate on its own merit.

(i) Members of the committee may be given such basic minimum training as may be considered necessary by the Legal Services Authority from time to time.

(j) The Members of the committee may be given such honorarium as may be considered viable.

(k) It will be open to the District and Sessions Judge to utilize the cost fund wherever considered necessary and proper.

ii)     Complaints under Section 498A and other connected offences may be investigated only by a designated Investigating Officer of the area. Such designations may be made within one month from today. Such designated officer may be required to undergo training for such duration (not less than one week) as may be considered appropriate. The training may be completed within four months from today;

iii)       cases where a settlement is reached, it will be open to the District and Sessions Judge or any other senior Judicial Officer nominated by him in the district to dispose of the proceedings including closing of the criminal case if dispute primarily relates to matrimonial discord;

iv    If a bail application is filed with at least one clear days notice to the Public Prosecutor/complainant, the same may be decided as far as possible on the same day. Recovery of disputed dowry items may not by itself be a ground for denial of bail if maintenance or other rights of wife/minor children can otherwise be protected. Needless to say that in dealing with bail matters, individual roles, prima facie truth of the allegations, requirement of further arrest/ custody and interest of justice must be carefully weighed;

v)      In respect of persons ordinarily residing out of India impounding of passports or issuance of Red Corner Notice should not be a routine;

vi)        It will be open to the District Judge or a designated senior judicial officer nominated by the District Judge to club all connected cases between the parties arising out of matrimonial disputes so that a holistic view is taken by the Court to whom all such cases are entrusted; and vii) Personal appearance of all family members and particularly outstation members may not be required and the trial court ought to grant exemption from personal appearance or permit appearance by video conferencing without adversely affecting progress of the trial.

viii)     These directions will not apply to the offences involving tangible physical injuries or death.

The Court said that it is a matter of serious concern that large number of cases continue to be filed under Section 498A alleging harassment of married women and that most of such complaints are filed in the heat of the moment over trivial issues & many are not bona fide. The Court said that involvement of civil society in the aid of administration of justice can be one of the steps to remedy this situation, apart from the investigating officers and the concerned trial courts being sensitized.

The above mentioned guidelines are not exhaustive. Some of the guidelines like the constitution of the Family Welfare Committees by the District Legal Services Authorities comprising of three members including paralegal volunteers/social workers/retired persons/wives of working officers/other citizens who may be found suitable and willing may not be workable. The judgment needs to be reconsidered.

In Deepa v.Srinivsa Rao, the Supreme Court has already considered the suitability of mediation in Section 498 A cases. Therefore instead of constituting the Family Welfare Committee, the special investigation police officer can refer the matter for pre-litigation mediation to the concerned court annexed mediation centre and the trained mediators can deal with the matter in a better manner than that of a Family Welfare Committee members who has no experience in counseling the parties in this sort of disputes. All these guidelines can be treated as judicial legislation. Even after the earnest efforts by the judiciary, there is no favorable response is seen from the legislature to amend the law relating to cruelty, which is the need of the hour.

Hence it is suggested that the legislature has to initiate immediate steps to amend the law by considering the guidelines which are suitable to solve the issue relating to misuse of the provision.

Prof. (Dr.) K.K.Geetha

Professor & Dean

School of Law,

JEMTEC (Affiliated to GGSIP University, Delhi)