In the Supreme Court of India Civil original jurisdiction Case No. Writ petition (civil) no. 73 of 2015 Petitioner Social action forum for manav adhikar and another Respondent Union of India Ministry of Law and Justice and ors. Date of Judgement Decided on september 14th, 2018 Bench Justice Deepak Misra, Justice A.M Khanwilkar and Justice D.Y Chandrachud.
There is an increasing number of crimes against women including instances of domestic violence and abuse. Section 498-A was brought into the statute book in the year 1983 to deal effectively not only with cases of Dowry Death but also cruelty to married woman by their in laws. This petition was filed seeking directions to create an enabling environment for married women subjected to cruelty. The directions issued by the Supreme Court in the case of Rajesh Sharma were considered in detail in this case and the competency of the Court to issue directions through interpretation was also examined.
It was contended by the petitioners that the legislative intent behind Sec 498-A is being diluted due to the absence of any uniform system of monitoring and systematic revie of violence aginst women. The rigour of the Section is being lost because of the qualification and restriction prescribed by the judiciary including that in Rajesh Sharma case.
The main direction in the aforesaid case was the setting up of Family Welfare Committee this as a whole was held as not in accord with the statutory framework. The constitution of the FWC and its constitution by the District Legal Services Authority and the power conferred on the Committee is impermissible. The three judge bench also directed that investigating officers who are in charge of investigation of cases of offences under Sec 498-A should be given training relating to arrest. And be guided by the Principles stated in Joginder Kumar, Lalita Kumarri and Arnesh Kumar.
The petitions have been preferred under Art 32 of the Constitution of India seeking directions to the respondents 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 Sec 498-A IPC including their prevention, investigation, prosecution and rehabilitation of the victims and their children at the Central, State and District levels.
Prayer has been made to issue writ of mandamus to the respondents for a uniform policy of registration of FIR, arrest and bail in cases of Sec 498-A IPC in consonance with the law of the land, ie, to immediately register FIR on complaint of cruelty and harassment by married women as per the IPC.
The essential contention was that the social purpose behind Sec 498-A was being lost by reason of various qualifications and restrictions prescribed by various courts including the recent decision in Rajesh Sharma and others v. State of U.P and another. The Supreme Court in this case had issued directions to prevent purported misuse of Sec 498-A. The core issue that arose in the appeal related to the need to check the alleged tendency of woman filing complaint under Sec 498-A to rope in all family members in settlement of matrimonial dispute. The most important direction given was with regard to the establishment of Family Welfare Committees to look into complaint filed under Sec 498-A.The court also directed that no arrest in the matter shall be made unless the Committee’s report is received. It was also stated that in cases where a settlement has been reached, it may 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 primarly relates to matrimonial discord.
The issues that were considered in this case are:
- Whether the Court in Rajesh Sharma case could, by the method of interpretation, have issued such direction?
Arguments in favour of the Petitioner
Arguments put forward by the petitioners are as follows;
1. The legislative intent behind Sec 498-A is being diluted due to the absence of any uniform system of monitoring and systematic review of incidents of violence against married women.
2. Though there is general complaint 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 Sec 498-A is being lost as the rigour of the provisions have been diluted and the offence made bailable by various qualifications and restrictions prescribed by various decisions including Rajesh Sharma and others v. State of U.P and another.
4. Despite the fact that Section 498-A IPC discloses a non-bailable offence and sufficient checks and balances have been provided in the law itself under Section 41 CrPC, the police is hesitant to arrest the accused on complaint by married women and the same inaction is justified by quoting various judgments.
5. There is a lack of monitoring mechanisms to track cases registered under Sec 498-A including systematic study of the reasons of low conviction.
6. Investigation by the police of offence under Sec 498-A is often unprofessional and callous and the investigating officers perceptibly get influenced by both the parties which results in perpetrators escaping conviction.
7. In many cases under Sec 498-A the court has not considered mental cruelty caused to the woman but has concentrated only on sign of physical cruelty and led the courts to brand the woman on many occasions as hyper sensitive or of low tolerance level.
8.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 Sec 498-A.
Arguments in favour of the Petitioner
The arguments put forward by the respondents are as follows;
1. Sec 498-A 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. The simplest way to harass in laws is to get the husband and his relatives arrested under Sec 498-A. Arrest brings humiliation, curtails freedom and casts scars forever.
3. Power to Arrest is one of the lucrative source of police corruption and it is largely considered as a tool of harassment and oppression. The attitude is to arrest first and then proceed with the rest. This is despicable and needs to be regulated.
4. Crime in India 2012 Statistics published by the National Crime Records Bureau, Ministry of Home Affairs which shows arrest of 1,97,762 persons all over India during the year 2012 for the offence under Section 498-A.
Mr.V Shekhar, learned Senior Counsel, appointed as Amicus Curiae gave the following submissions:
1. The decision in Rajesh Sharma requires reconsideration, as the judgment confers powers on the Family Welfare Committee to look into the criminal complaints under Sec 498-A.
2. The constitution of FWC is contrary to the procedure prescribed under the Criminal Procedure.
3. Entrusting the power to dispose of the proceedings under Section 498-A IPC by the District and Sessions Judge or any other senior judicial officer nominated by him in the district in cases where there is settlement, are impermissible, for an offence under Section 498-A is not compoundable and hence, such a power could not have been conferred on any District and Sessions Judge or any senior judicial officer nominated by him.
4. The recovery of disputed dowry items may not itself be a ground for denial of bail which is the discretion of the court to decide the application of grant of bail in the facts and circumstances of the case and thus, this tantamounts to a direction which is not warranted in law.
5. Para 19(v) was criticized which states that for persons who are ordinarily residing out of India, impounding of passports or issuance of Red Corner Notice should not be done in a routine manner.
6. 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 Court gave out the following considerations while delivering the judgment:
It is not within the domain of the courts to embark upon an enquiry as to whether a particular public policy is wise and acceptable. The court can only interfere if the policy framed is absolutely capricious or not informed by reasons or totally arbitrary, offending the basic requirement of Art 14 (Census Commissioner and others v. R. Krishnamurthy). Moreover, it has been held that no court can direct a legislature to enact a particular law (Suresh Seth v. Commissioner, Indore Muncipal Corporation and others).
With regard to the issue as to whether the directions as in the case of Rajesh Sharma, could have been issued by the process of interpretation, the court analysed the fact that judiciary in furtherance of a fundamental right, has issued directions in the absence of law in certain cases namely, Vishaka and Others v. State of Rajasthan and others, Lakshmi Kant Pandey v. Union of India..The Court also observed that the prescription of duties of the Welfare Committees and further action are beyond the Code and the same does not flow from any provision of the Code.
It was also opined that the legislature in its wisdom has made the offence under Sec 498-A cognizable and non-bailable, the fault lies within the investigating agency which jumps into action without application of mind.
While considering the judgment in Lalita Kumari v. Government of Uttar Pradesh and others the Court stated that it is quite vivid that the Constitution Bench had not suggested that preliminary enquiry may be held in matrimonial/family disputes.
On the basis of the aforesaid judgments and considerations the Court gave its judgment holding that the directions pertaining to Family Welfare Committee and its constitution by the District Legal Services Authority and the power conferred on the committee is impermissible and made the following observations:
The directions issued in the judgment are as follows;
1. The investigating officers be guided by the principles stated in Joginder Kumar v. State of U.P and others, D.K Basu v. State of W.B, Lalita Kumari and Arnesh Kumar v. State of Bihar and another.
With regard to the directions given in Rajesh Sharma, the Court gave out the following judgment:
1. The direction contained in 19(i), which contains the provision of establishment of Family Welfare Committees, as a whole is not in accordance with the statutory framework .
2. Court modified the direction No. 19(iii) stating that if a settlement is arrived, the parties can approach the High Court under Sec 482 of the Code of Criminal Procedure.
3. So far as direction No. 19(vi) (clubbing of all connected cases) and 19(vii) (exemption from personal appearance) are concerned, an application has to be filed either under Section 205 CrPC or Section 317 CrPC depending upon the stage at which the exemption is sought.
4. Director General of Police of each state should make sure that the investigating officers who are in charge of investigation of cases of offences under Sec 498-A be imparted rigorous training with regard to principles stated by this court relating to arrest.
5. When an application for bail is entertained, proper conditions have to be imposed but recovery of disputed dowry items may not by itself be a ground while rejecting an application for grant of bail under Section 498-A IPC.