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498 A Now and Then.

498A Lawyers in Chandigarh

More than 7 months have now gone after the landmark judgment/order of to judge bench of 2 Judge Bench of Supreme Court as passed in Rajesh & ors. Vs. State of U.P. & Anr.  issued new guidelines to prevent further misuse of section 498A of IPC meant to protect women being harassed for dowry and facing cruelty in the hands of Husband and his relatives, still a lot more is left to be done.

For better understanding let’s bare read the section 498A itself. For reference it is reproduced below:

“                                                          IPC     Chapter XXA

S. 498 A- Husband or relative of husband of a woman subjecting her to cruelty.

Description- Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine.

Explanation- For the Purpose of this section, “Cruelty” means-

a. Any wilful conduct which is of such nature as is likely to drive the woman to commit suicide or cause grave injury or danger to life, limb or health (whether mental or physical) of the woman; or

b. Harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her to meet the demand.]

Classification of offence- The offence under this section is cognizable if information relating to the commission of offence  is given to an officer in charge of a Police Station by the aggrieved person or by any person related to her by blood, marriage or adoption or if there is no such relative, by any public servant belonging to search class or category as may be notified by State Government in this behalf, non-bailable and non-compoundable and triable by Magistrate of the first class.

Society is divided on the opinion that 498A IPC has lost its sheen after the mandatory directions/guidelines, where it comes as a much sought after relief for husbands who had spent countless days in jail and what to say about the experiences of their parents who suffered the same fate. Now, they just can’t accept their daughter-in-law.

Exploitation is admitted from both sides and it’s not at all about being fair in the game. The dependency and tolerance is simply gone with free spirited will and individualistic goals and aims where permanence is boring and constant change/movement is desired. Even the liking of a single partner is gone too and we can see second marriages, third marriages and so on happening.

That's the reason now Mediation and Conciliation has advanced to Family Welfare Committee’s (FWC’s). Their approach is to snub the problem right from the stem and douse the marital fire.

Now the guidelines:

Rajesh & ors. Vs. State of U.P. & Anr.  as decided on 27th July, 2017.

A.

  1. Every district will have one or more FWC reviewed by District Legal Services Authority (DLSA) preferably comprising of 3 members. Disrict Judge will review the working of FWC’s at least once in a year as a chairman of DLSA.
  2. FWC out of NGO/social workers/ retired/ wives of officers / other citizens found suitable and willing.
  3. FWC will not be called as witnesses.
  4. Every 498 a complaint to be looked by FWC first. They can talk on phone, meet parties as situation permits. Magistrate or Police both can refer.
  5. Within one month of receipt of complaint, family welfare committee will give complaint to the authority who referred (Police or Magistrate).
  6. Family welfare committee to give factual report and its opinion on matter.
  7. Till abovesaid report is received no arrest.
  8. Report to be considered by investigation officer (IO) or Magistrate on its own merit. 
  9. Members of family welfare committee be given training by district legal services authority (DLSA) as desired. Honorarium as viable can also be given. District Judge to utilize funds wherever necessary and proper.

Justice AK Goel and UU Lalit considered the intent of Legislature while introducing 498A and then made these guidelines.The whole idea is to sensitized the IO’s, Police officers, judicial officers,  victims, accused and civil society who are the ultimate sufferers of crack of 498A IPC.

B.

  1. Inquiry officer a designated officer specially for crime against women (CAW) and 498 a offences.
  2. District Judge can close criminal proceedings if some settlement is arrived. Applicable to matrimonial offences only.
  3. For Bail Application, 1 day notice to public prosecutor and decide cautiously. Weigh pros and cons carefully.
  4. Impounding of passport or Red Corner notice shouldn't be a routine.
  5. District judge to club all cases to take holistic view of same matrimonial dispute.
  6. Family members appearance be exempted or video conference should be encouraged.
  7. These guidelines not applicable to tangible physical injuries or death case.

Arnesh Kumar vs State of Bihar  decided on 2nd July 2014

  1. No automatic arrest under 498A. Necessary parameters of section 41 CrPC satisfied first.
  2. Police officers handy with checklist of section 41(1) (b) (ii).
  3. Follow the checklist with due diligence and arrest with utter caution and present before magistrate for detention.
  4. Majestic to peruse full report and then only authorise detention. Satisfaction of magistrate must.
  5. if not a arrested, forward copy to the magistrate and SSP within 2 week from the Institution of a case.
  6. Notice of appearance in terms of Section 41A of CrPC within two weeks of institution of a case extended with permission of SSP of district only in writing.
  7. Failure in following guidelines will invite departmental enquiry and contempt proceedings before High Court.
  8. Even magistrate not recording sufficient reason for detention to be held liable for departmental action by High Court.
  9. Guidelines xtended not only to 498A or Section 4 of dowry prohibition act but for offences where imprisonment is for less than 7 years or extends to 7 years.
  10. Copies of this judgment to be supplied to chief secretaries, DGP of police of State Government and UT and registrar general High Court for onward transmission and its compliance.

Even though Supreme Court is yet to revisit the 27th July Judgment that discussed the misuse of 498A, the disgruntled families are yet to make peace within and succumb to ever-rising egos and social status of husband-wife. It gets worse when children are even at stakes. Time has come where pre-nuptial agreements before marriage will have place in Indian Society and the revered institution of Marriage will just became a another contract.

Pretty soon!

For any subject specific advice dial -99888-17966 or write to satish@legalseva.net .

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