Laws are meant for the protection of innocent and punishment to guilty but when they become instruments of perversity and misuse, their very purpose gets defeated and they need to be re-looked. Section 498A of the Indian Penal Code is one such law which has been used to harass others than to help the young women. 498A is a criminal offence that came into existence to combat domestic violence and protect women from dowry harassment. In the 1980s, the incidences of ‘dowry deaths’ were steadily rising in India. A dowry death is the murder of a young woman; committed by the in-laws, when she was unable to fulfill their coercive demands for money, articles or property, categorized as dowry. Organizations across the country pressurized and urged the government to provide legislative protection to women against domestic violence and dowry. The objective was to allow the state to intervene rapidly and prevent the murders of young girls who were unable to meet the dowry demands of their in-laws. As a result of the intense campaigning and lobbying, significant amendments were made in the Indian Penal Code, the Indian Evidence Act and the Dowry Prohibition Act, with the intention to protecting women from marital violence, abuse and dowry demands.
Section 498A of the IPC reads ‘who voluntarily causes hurt, shall be punished with imprisonment of either description for a term which may extend to or with fine, which may extend to rupees one thousand or with both. But it has been observed that women and her family members have been using it as either as a counter balance or harassing the family members of the husband to take revenge. The Supreme Court has now framed certain guidelines for invoking this section so as to prevent its misuse.
These guidelines have been issued in the background of a case of Rajesh Sharma vs State of Uttar Pradesh. The case in nutshell, as per the complaint of the wife is that one Rajesh Sharma and his family members were not happy with the dowry that she brought at the time of the marriage. They were constantly abusing and misbehaving with her and after one year of the marriage she was dropped at her maternal home, when she was pregnant, which was ultimately terminated. On her complaint, the husband was tried under Section 498A and Section 323 IPC and charges were framed against him.
Dissatisfied with the order of the trial court the concerned women preferred a revision petition and submitted that all persons-the father, the mother, the unmarried sister and the younger brother of the husband- be tried under 498A of the IPC. The Additional Sessions Judge directed the trial court to take a free decision. In the meantime, the family of the husband approached the High Court under Section 482 CrPC against the order of the Additional Sessions Judge. The High Court found no ground to interfere with the order of summoning and dismissed the petition.
Rajesh Sharma, the husband said in his petition before the Supreme Court that all his family members were implicated to settle a matrimonial dispute. He alleged that the woman herself left the matrimonial home. Moreover, the father of the husband is a retired government employee, mother is a housewife and two others-the brother and sister – are unmarried. The sister is a government employee and has no interest in making any demand of dowry.
Based on many records and reports, the Supreme Court found that there is 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. At times, this results in harassment and even arrest of innocent family members, including women and senior citizens. This may hamper any possible reconciliation and reunion of a couple.
According to the statistics from the Crime Records Bureau (CRB) in 2009 for a total 89,546 cases reported, a total of 1,74,395 people was arrested and 8,352 cases were declared false on account of mistake of fact or law. In 2012 a total of 197,762 people across India were arrested. Approximately a quarter of those arrested were women that is 47,951 of the total were perhaps mother or sisters of the husband. However, the conviction rate was at a staggering low at 14.4% only.
The Madras High Court said as back as in 2008 that the ‘Act is to check and curb the menace of dowry and at the same time, to save the matrimonial homes from destruction but our experience shows that, apart from the husband, all family members are implicated and dragged to the police stations. Though arrest of those persons is not at all necessary, in a number of cases, such harassment is made simply to satisfy the ego and anger of the complainant’. In the same manner, the Delhi High Court in Chander Bhan versus State said that FIR in such cases should not be registered in a routine manner. The Patna High Court has also made the almost the similar observation in Arnesh Kumar versus State of Bihar.
Now the Supreme Court has given finality by saying that the arrest of a relative other than husband could only be after permission from the concerned Magistrate. There should be no arrest of relatives aged above 70 years. Power of the police to straight away arrest must be prohibited. While granting permission, the court must ascertain that there is prima facie material of the accused having done some overt and covert act. The role of each accused must be specified in the complaint and the complaint must be accompanied by a signed affidavit. The copy of the preliminary inquiry report should be furnished to the accused.
The Supreme Court further issued directions that every district one or more Family Welfare Committees be constituted by the District Legal Services Authorities preferably consisting of three members from to look into such cases. Every complaint under Section 498A received by the police or the Magistrate be referred to and looked into by such committee, who may have interaction with the parties personally or by means of telephone or any other mode of communication including electronic communication. Report of such committee be given to the Authority by whom the complaint is referred to it latest within one month from the date of receipt of complaint.
The Court further directed that complaints under Section 498A and other connected offences may be investigated only by a designated Investigating Officer of the area. Such designated officer may be required to undergo training for such duration (not less than one week) as may be considered appropriate. In cases where a settlement is reached, it will be open to the District and Sessions Judge or any other senior Judicial Officer nominated by him/her in the district to dispose of the proceedings. With regard to the Bail, the Court has directed that if application is filed with at least one clear day’s notice to the Public Prosecutor/complainant, the same may be decided as far as possible on the same day. Recovery of disputed dowry items may not be a ground for denial of bail if maintenance or other rights of wife/minor children can otherwise be protected. In respect of persons ordinarily residing out of India impounding of passports or issuance of Red Corner Notice should not be a routine;
The biggest relief to the family of the husband is that they have been exempted from personal appearance. Their statements can be recorded by video conferencing without adversely affecting progress of the trial. These directions will not apply to the offences involving tangible physical injuries or death. Hopefully, it will set the law on the right track.