In the Supreme Court of India
Civil original jurisdiction
Writ petition (civil) no. 73 of 2015
Social action forum for manav adhikar and another
Union of India Ministry of Law and Justice and ors.
Date of Judgement
Decided on September 14th, 2018
Justice Deepak Misra, Justice A.M Khanwilkar and Justice D.Y Chandrachud.
There is a sharp rise in the crime rate against women that includes domestic violence and abuse. Section 498A of the Indian Penal Code deals with the provisions subjecting cruelty or abuse against women by her husband or her husband’s relatives.
The Writ petition was filed under Article 32 of the Indian Constitution. This petition was filed seeking directions to create an enabling environment for married women subjected to cruelty.
The petitioners contended that the legislative intent behind Section 498-A of IPC is being diluted due to the absence of any uniform system of monitoring and systematic review of violence against women. The rigour of the Section is being lost because of certain qualifications and restrictions prescribed by the judiciary including that in Rajesh Sharma case.
In this case the three judge bench of the Supreme Court modified the controversial directions that were issued by the Supreme Court in case of Rajesh Sharma and ors. Vs. State of U.P and Anr. The apex court in the present case modified the directions and held that creation of a third agency and the powers conferred on it were impermissible.
The court held that the direction with respect to the constitution and duties of family welfare committee has been declared impermissible and directed the investigating officers should be given training and be guided by the principles laid down in case of Joginder Kumar, Lalita Kumarri and Arnesh Kumar.
The petition was filed under Article 32 of the Indian Constitution seeking directions to create an enabling environment for married women subjected to cruelty to make informed choices and to create a uniform system of monitoring and systematically reviewing incidents of violence against women under Section 498A of IPC including their prevention, investigation, prosecution and rehabilitation of the victims and their dependents.
The petitioners contended for a uniform policy of registration of FIR, arrest and bail in cases under Section 498A of IPC in consonance with the law of the land, i.e., to immediately register FIR on complaint of cruelty and harassment by married women as per the IPC.
The further contention was that the social purpose behind Sec 498A is being lost as a result of various qualifications and restrictions prescribed by the apex court in case of Rajesh Sharma and others v. State of U.P and another.
Whether the apex Court in the case of Rajesh Sharma could, by the method of interpretation, have issued such direction?
Arguments in favour of Petitioners:
1. The legislative intent behind enacting Section 498A of IPC is being diluted due to the absence of any uniform system of monitoring and systematic review of incidents of violence against married women.
2. Although there is a common accusation that Sec 498 is subject to gross misuse, yet there is no concrete data to indicate how frequently the provision has been misused. Moreover misuse alone cannot be a ground to repeal a penal provision or take away its teeth.
3. The social purpose behind Section 498A of IPC is being lost as the rigour of the provisions have been diluted and the offence has been made bailable by various qualifications and restrictions prescribed by the apex court in the case of Rajesh Sharma and others vs. state of U.P and another.
4. There is lack of monitoring mechanisms to track the cases registered under Section 498A of IPC including systematic study of the reasons of low conviction.
5. Investigation by the police officers under Section 498A of IPC is often unprofessional and the investigating officers at times get influenced by the parties which results in the perpetrators escaping conviction.
6. The alleged abuse of the provision is mostly by well educated women but this cannot be a ground for denying the poor illiterate women the protection by Section 498A of IPC.
7. The provision under Section 498 of IPC generally considers physical cruelty against women ignoring the mental aspect.
Arguments in favour of Respondents:
1. Section 498A which is cognizable and non-bailable has lent it a dubious place of pride amongst the provisions that are used as weapons rather than shield by disgruntled wives. (Arnesh Kumar v. State of Bihar and another).
2. Section 498A apart from protecting women provides a way to harass in laws and to get the husband and his relatives arrested. As Arrest brings ignominy, curtails freedom and casts scars forever.
3. The power to Arrest is one of the lucrative sources of police corruption and is largely considered a tool of harassment and oppression. The attitude is to first arrest and then the further proceedings are to be followed. This is despicable and needs to be regulated.
Mr. V Shekhar learned Senior Counsel was appointed as Amicus Curiae. His submissions were as follows:
1. The decision of the Supreme Court in case of Rajesh Sharma requires reconsideration, as the judgment confers powers on the Family Welfare Committee to look into the criminal complaints under Section 498A of IPC.
2. The constitution of Family Welfare Committee is contrary to the procedure prescribed under the Criminal Procedure.
3. Entrusting the power to dispose of the proceedings under Section 498A of IPC by the District and Sessions Judge or any other senior judicial officer in cases where there is settlement, are impermissible, as an offence under Section 498A is not compoundable.
4. The recovery of disputed dowry items may not itself be a ground for denial of bail as it is the discretion of the court whether to grant or not to grant bail after considering the facts and circumstances of the case.
5. The dispensation of personal appearance of outstation family members is unwarranted, as a competent court in a criminal proceeding should be allowed to exercise the judicial discretion.
The three judge bench referred to the principles laid down in the cases of Joginder Kumar v. State of U.P, D.K. Basu v. State of W.B, Lalita Kumari v. Government of Uttar Pradesh and Arnesh Kumar v. State of Bihar and directed the investigating officers to be careful and be guided by the same.
The Court held that the directions with respect to Family Welfare Committees and their duties are not in accordance with any provision of Code of Criminal Procedure, 1973. Further the offence of cruelty is non-bailable and cognizable offence but due to the direction making it impossible to arrest before the report of such committee has made this ineffective. Thus the direction given in Rajesh Sharma case has been modified.
The direction with respect to the constitution and duties of Family Welfare Committee has been declared impermissible and the directions pertaining to the settlement has been modified to include that if a settlement is arrived at, the parties can approach the High Court under Section 482 of the Code of Criminal Procedure. The High Court, keeping in view the law laid down in the case of Gian Singh v. State of Punjab shall dispose of the same.
Edited by J. Madonna Jephi
Approved & Published – Sakshi Raje