November 26, 2017
Section 498A of Indian Penal Code (IPC) (Cruelty by Husband or Relatives of Husband) was incorporated vide Amendment Act of 1983 with a view to punish husband and his relatives who harass or torture the wife to coerce her or her relatives to satisfy unlawful demands of dowry. The offence under Section 498A of IPC has been classified as a cognizable and non-bailable offence. The alarming increase in torture meted out to women which in some cases also led to death of women by husband or relatives of husband prompted the legislature to provide for an exclusive Chapter (Chapter XXA) which specifically dealt with ill-treatment and torture on women particularly due to demand for dowry.The provision imposes imprisonmentfor a term of 3 years and shall also be liable for fine.
In the recent past, incidences have been reported wherein the legal provision was allegedly being misused by women. In the wake of misuse of Section 498A of IPC , the Supreme Court in a recent case has issued directions with the object to prevent such misuse.
In this recent case of Rajesh Sharma & Ors. v. State of U.P. issued directions to prevent misuse of Section 498A. The core issue that arose in the appeal related to the need to check the alleged tendency of woman filing complaint under Section 498A to rope in all family members in settlement of matrimonial dispute.
In view of this concern, the Supreme Court appointed the Additional Solicitor General, Shri A.S. Nadkarni and Senior Advocate Sri V.V. Giri as amicus to assist the Court in the matter.
Recommendations by the Amicus in the case
a) That the allegations against all relatives of the husband cannot be taken at face value when in normal course it may only be the husband or at best his parents who may be accused of demanding dowry or causing cruelty and in order to check abuse of over implication, clear supporting material needs to be producedto proceed against other relatives of a husband
b) That there has been a growing tendency to abuse the said provision to rope in all the relatives including parents of advanced age, minor children, siblings, grand-parents and uncles on the strength of vague and exaggerated allegations without there being any verifiable evidence of physical or mental harm or injury which several times results in harassment and even arrest of innocent family members, including women and senior citizens.
c)That misuse of Section 498A has also been judicially acknowledged in several cases.
d) That in respect of relatives who are ordinarily residing outside India, the matter should proceed only if the Investigation Officer is convinced that arrest is necessary for fair investigation and In such cases impounding of passport or issuance of red corner notice should be avoided.
e) That provision of counseling under Section 14 of the Protection of Women from Domestic Violence Act, 2005, should be made mandatory before registration of a case under Section 498A .
The Court in the case issued directions to the Centre which might aid in preventing misuse of Law and safeguard against uncalled for arrests. While arriving at its decision, the Supreme Court noted observations made by the Courts in earlier cases and the recommendations made by the Law Commission of India. T
The Court also observed that Section 498A was inserted in the statute with the object to punish cruelty at the hands of husband or his relatives against a wife particularly when such cruelty had potential to result in suicide or murder of a woman and it is a matter of serious concern. The Court also recognized some areas for remedial steps. For instance uncalled for implication of husband and his relatives and arrest, continuation of proceedings in spite of settlement between the parties and facilitation of closure of proceedings where a genuine settlement has been reached. In order to curb misuse of Law, the Court also suggested active participation of civil society organizations in such matters.
In view of the aforesaid, the Apex Court issued the following directions:
(a) Establishment of Family Welfare Committees- Constitution of one or more Family Welfare Committees in each District by the District Legal Services Authority. 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. The Committee shall look into every complaint filed in the District under Section 498A. Thereafter the Committee shall interact with concerned parties and report shall be submitted by the Committee to the Legal Services Authority within one month from the date of receipt of complaint.
The Court further directed that no arrest in the matter shall be made unless the Committee’s report is received. The report would thereafter be considered by the Investigating Officer or the Magistrate. The Court also stated that in cases where a settlement has been reached, it will be open to the District and Sessions Judge or any other senior Judicial Officer to dispose of the proceedings including closing of the criminal case if dispute primarily relates to matrimonial discord;
The Court has further directed that if a bail application is filed in the case, then the same shall be attempted to be decided on the same day. The Court also clarified that 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.
(b) Complaint under Section 498A against persons ordinarily residing out of India– In this context, the Court has directed that in such cases impounding of passports or issuance of Red Corner Notice should not be mandatorily adhered to.
(c) Other directions- Personal appearance of all family members and particularly outstation members may not be required and the trial court ought to grant exemption frompersonal appearance or permit appearance by video conferencing without adversely affectin progress of the trial.
The Supreme Court in the case however has stated that the aforesaid directions does not apply to cases in which the wife has suffered tangible physical injuries or death. The Court has further directed the National Legal Services Authority to submit a report on working of the aforesaid arrangement by March 31, 2018 and the matter has been next listed for hearing in April, 2018.