Lawyers

  • Mandira Moitra
    Mandira-Moitra

    Sr.Associate

    B.A , L.L.B

    mandira.moitra@astrealegal.com

    Expertise Will & Probate, Child Custody, Divorce, Trust, Succession & Inheritance, Arbitration, Domestic Violence,Trust.

  • Urwi Keche
    Urwi-Keche (Copy) (Copy) (Copy)

    Partner

    BA. in Law, LL.B, LL.M

    urwikeche@astrealegal.com

    Practices IT, Biotechnology,Tourism & Hospitality,Education Administrative Law, Cyber Crime, E-Commerce, Software and Computer Rights, Domain Dispute, Identity Theft,

Close-up. Arrested man handcuffed

On 27th July 2017, through a landmark judgment in Rajesh Sharma & Ors v. State of U.P & Ors (Criminal Appeal No.1265 of 2017), the Supreme Court of India put an end to the automatic arrest of men and members of their family under S.498A of Indian Penal Code. The said judgment was made with a view to preventing the misuse of the dowry related provision by disgruntled wives for harassing their husbands. The court also held that there will not be usual impounding of passports or Red Corner Notice for NRIs who are accused of cruelty under S.498A. Also, the personal appearance of all the members of the family and relatives abroad is not necessary in a prosecution under this Section. However, the court maintained that these directions should not apply when there is prima facie evidence of physical injury or death.

The bench consisting of Justices A.K Goel and UU Lalit noted that S.498A was added in the Code with the object of punishing cruelty at the hands of the husband and his relatives against the wife and which has the potential to result in her death or suicide. This was also evident from the statement of object and reasons of the Amendment Act of 1983.

The Court said “It is a matter of serious concern that large numbers of cases continue to be filed under Section 498A alleging harassment of married women. To remedy the situation, we are of the view that involvement of civil society in the aid of administration of justice can be one of the steps, apart from the investigating officers and the concerned trial courts being sensitized. It is also necessary to facilitate closure of proceedings where a genuine settlement has been reached instead of parties being required to move High Court only for that purpose”.

QUESTION INVOLVED

The court was called upon to decide whether any directions were called for to prevent the misuse of Section 498A.

The court sought the assistance of ASG AS Nadkarni and Senior advocate V Giri to act as amicus curies.

CONTENTIONS OF THE PARTIES

The main contention raised in support of the appeal was that there is a need to check the tendency to rope in all family members to settle a matrimonial dispute. Omnibus 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.   

The ASG submitted that S.498A was enacted to check unconscionable demands by greedy husbands and their family which at times result in cruelty to women. However he accepted that there is a growing tendency to abuse the said provision which might hamper any possible reconciliation and reunion of the couple. It was also submitted that the misuse of the provision is judicially acknowledged through several cases.

JUDGMENT  

The important directions of the court in the judgment are as follows:

  • District Family Welfare Committees to be Constituted

The Court directed that every complaint under S.498A received by the Police or Magistrate should be referred to the Family Welfare Committee and the accused should be arrested only after the committee has made a report on the complaint. Such Committee may personally interact or have telephonic or electronic communication with the parties. However, such members are barred from appearing before any court or authority in any legal proceeding as witnesses. The Committee must submit its report containing the factual aspects of the complaint and its opinion on the matter within one month of reference.  

These committees are to be constituted by the District Legal Services Authority to comprise of, preferably three members. The working of the committee is to be reviewed by the District and Sessions at least once in a year. The committee must consist of para –legal volunteers, social workers, retired persons, wives of working officers or other suitable persons. The members may be given such basic training from time to time as the District Legal Services Authority thinks fit. They may also be given an honorarium.  

  • Only Designated Officers to Investigate Complaints

Complaints under S.498A and similar offences are to be investigated only by a designated officer of the area who is to undergo a training of at least one week. Such designations are to be made within one month and such training has to be completed within four months from the date of the judgment.

  • Closure of Proceedings  

In case the parties reach to a settlement, the District or Sessions Judge or any other Senior Judicial Officer as may be nominated by him may dispose of the matter, including the closure of criminal proceedings when it relates to a matrimonial discord.  In such cases, parties need not go to the High Court only for this purpose.

  • Bail Applications to be Heard on the Same Day

If bail application is given with one clear days notice to the public prosecutor, the application shall be heard on the same day itself.  Bail shall not be denied only on the ground of recovery of dowry articles if other rights of the wife and children such as maintenance can be protected otherwise.

However, in 2014 itself the Supreme Court had expressed its concerns over the rocketing number of arrests under this section which would subsequently prove to under vexatious prosecutions. The court mentioned that in 2012 more than 3 lakh persons had been arrested under S.498A, whereas only 15% them were convicted.  At that time itself the court had laid down a check list for the police to consider before making any arrest under this section. This was to ensure that that the police made a primary investigation before the arrest as in any other case.

Subsequently in 2016 also the court had upheld the bar on automatic arrest of men under this section. The court had observed that even bed-ridden grant parents and sisters living abroad for decades had been dragged into prosecution.     

This judgment will have positive and long term impact on the society especially in view of an earlier observation of the SC that the provision being used as a “weapon instead of as a shield”.