# SOCIAL ACTION FORUM FOR MANAV ADHIKAR AND ANOTHER v. UNION OF INDIA MINISTRY OF LAW AND JUSTICE AND OTHERS

- **Citation:** [2018] 12 S.C.R. 19
- **Court:** Supreme Court of India
- **Decided:** 2018-09-14
- **Bench:** Dipak Misra, A. M. Khanwilkar, Dr. D.Y. Chandrachud
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/social-action-forum-for-manav-adhikar-and-another-v-union-of-india-ministry-of-32463
- **Pages:** 32

## Headnote

Penal Code, 1860 - s.498-A - Matrimonial disputes -
Directions issued in Rajesh Sharma and Others v. State of U.P. and
Another, [2017] 9 SCR 529 - Modification in - Amicus Curiae
contended that directions issued in the Rajesh Sharma case
pertaining to s.498-A of IPC required reconsideration - Held: 1)
Earlier, the Court had directed constitution of the Family Welfare
Committees by the District Legal Services Authorities and prescribed
the duties of the Committees - The Committees were empowered to
suggest a report failing which no arrest could be made - Directions
pertaining to constitution of a Committee and conferment of power
on the said Committee is impermissible as power conferred are
beyond the Code of Criminal Procedure - 2) The Court had also
issued direction that in cases where settlement is reached, the District
and Sessions Judges were entrusted with power to dispose of the
proceeding - This direction relating to settlement modified to the
extent that if a settlement is arrived at, the parties can approach
High Court u/s.482 of Cr.P.C. - 3) The Court had directed that
complaints u/s.498-A and other connected offences may be
investigated only by a designated investigating officer of the area
- This direction has to be read in conjunction with the direction
that Director General of Police of each State is to ensure that
investigating officers are imparted training with regard to the
principles laid down by Supreme Court relating to arrest - 4) Further,
the Court had left it open to the District Judge or a designated
judicial officer to club all connected cases between the parties and
had also exempted family members, particularly outstation members,
from personal appearance - These directions modified to the extent
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that an application has to be filed either u/s.205 Cr.P.C. or s.317
Cr.P.C. depending upon the stage at which exemption is sought - 5)
Nothing erroneous in the earlier directions relating to bail and
impounding of passports or issuance of Red corner notice - Code
of Criminal Procedure, 1973 - ss. 41, 41-A, 205, 317 and 482.
Disposing of the matters, the Court
HELD: 1. The core issue is whether the Court in Rajesh
Sharma could, by the method of interpretation, have issued such
directions. On a perusal of the directions, it is found that the
Court has directed constitution of the Family Welfare Committees
by the District Legal Services Authorities and prescribed the
duties of the Committees. The prescription of duties of the
Committees and further action therefor, are beyond the Code
and the same does not really flow from any provision of the Code.
There can be no denial that there has to be just, fair and
reasonable working of a provision. The legislature in its wisdom
has made the offence under Section 498-A Indian Penal Code,
1860 cognizable and non-bailable. The fault lies with the
investigating agency which sometimes jumps into action without
application of mind. The directions issued in Arnesh Kumar are
in consonance with the provisions contained in Section 41 CrPC
and Section 41-A CrPC. Similarly, the guidelines stated in Joginder
Kumar and D.K. Basu are within the framework of the Code and
the power of superintendence of the authorities in the hierarchical
system of the investigating agency. The purpose has been to see
that the investigating agency does not abuse the power and arrest
people at its whim and fancy. [Para 33] [46-A-D]
2. In Rajesh Sharma, there is introduction of a third agency
which has nothing to do with the Code and that apart, the
Committees have been empowered to suggest a report failing
which no arrest can be made. The directions to settle a case after
it is registered is not a correct expression of law. A criminal
proceeding which is not compundable can be quashed by the High
Court under Section 482 CrPC. When settlement takes place,
then both the parties can file a petition under Section 482

## Text

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SOCIAL ACTION FORUM FOR MANAV
ADHIKAR AND ANOTHER
v.
UNION OF INDIA MINISTRY OF LAW
 AND JUSTICE AND OTHERS
(Writ Petition (Civil) No.73 of 2015)
SEPTEMBER 14, 2018
[DIPAK MISRA, CJI, A. M. KHANWILKAR AND
DR. D.Y. CHANDRACHUD, JJ.]
Penal Code, 1860 - s.498-A - Matrimonial disputes -
Directions issued in Rajesh Sharma and Others v. State of U.P. and
Another, [2017] 9 SCR 529 - Modification in - Amicus Curiae
contended that directions issued in the Rajesh Sharma case
pertaining to s.498-A of IPC required reconsideration - Held: 1)
Earlier, the Court had directed constitution of the Family Welfare
Committees by the District Legal Services Authorities and prescribed
the duties of the Committees - The Committees were empowered to
suggest a report failing which no arrest could be made - Directions
pertaining to constitution of a Committee and conferment of power
on the said Committee is impermissible as power conferred are
beyond the Code of Criminal Procedure - 2) The Court had also
issued direction that in cases where settlement is reached, the District
and Sessions Judges were entrusted with power to dispose of the
proceeding - This direction relating to settlement modified to the
extent that if a settlement is arrived at, the parties can approach
High Court u/s.482 of Cr.P.C. - 3) The Court had directed that
complaints u/s.498-A and other connected offences may be
investigated only by a designated investigating officer of the area
- This direction has to be read in conjunction with the direction
that Director General of Police of each State is to ensure that
investigating officers are imparted training with regard to the
principles laid down by Supreme Court relating to arrest - 4) Further,
the Court had left it open to the District Judge or a designated
judicial officer to club all connected cases between the parties and
had also exempted family members, particularly outstation members,
from personal appearance - These directions modified to the extent
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that an application has to be filed either u/s.205 Cr.P.C. or s.317
Cr.P.C. depending upon the stage at which exemption is sought - 5)
Nothing erroneous in the earlier directions relating to bail and
impounding of passports or issuance of Red corner notice - Code
of Criminal Procedure, 1973 - ss. 41, 41-A, 205, 317 and 482.
Disposing of the matters, the Court
HELD: 1. The core issue is whether the Court in Rajesh
Sharma could, by the method of interpretation, have issued such
directions. On a perusal of the directions, it is found that the
Court has directed constitution of the Family Welfare Committees
by the District Legal Services Authorities and prescribed the
duties of the Committees. The prescription of duties of the
Committees and further action therefor, are beyond the Code
and the same does not really flow from any provision of the Code.
There can be no denial that there has to be just, fair and
reasonable working of a provision. The legislature in its wisdom
has made the offence under Section 498-A Indian Penal Code,
1860 cognizable and non-bailable. The fault lies with the
investigating agency which sometimes jumps into action without
application of mind. The directions issued in Arnesh Kumar are
in consonance with the provisions contained in Section 41 CrPC
and Section 41-A CrPC. Similarly, the guidelines stated in Joginder
Kumar and D.K. Basu are within the framework of the Code and
the power of superintendence of the authorities in the hierarchical
system of the investigating agency. The purpose has been to see
that the investigating agency does not abuse the power and arrest
people at its whim and fancy. [Para 33] [46-A-D]
2. In Rajesh Sharma, there is introduction of a third agency
which has nothing to do with the Code and that apart, the
Committees have been empowered to suggest a report failing
which no arrest can be made. The directions to settle a case after
it is registered is not a correct expression of law. A criminal
proceeding which is not compundable can be quashed by the High
Court under Section 482 CrPC. When settlement takes place,
then both the parties can file a petition under Section 482 CrPC
and the High Court, considering the bonafide of the petition, may
quash the same. The power rests with the High Court.
[Para 34][46-E-F]
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3. The directions pertaining to constitution of a
Committee and conferment of power on the said Committee is
erroneous in light of the statutory provisions and Supreme Court
judgments. However, the directions pertaining to Red Corner
Notice, clubbing of cases and postulating that recovery of
disputed dowry items may not by itself be a ground for denial of
bail would stand on a different footing. They are protective in
nature and do not sound a discordant note with the Code. 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. That cannot be considered at that stage.
Therefore, there is nothing erroneous in directions relating to
application for bail and issuance of Red Corner notice. So far as
directions allowing the District Judge or a designated senior
judicial officer nominated by the District Judge to club all
connected cases between the parties arising out of matrimonial
disputes and exemption of family members from personal
appearance is 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. [Para 35] [48-A-C]
4. While declaring 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. Therefore, it is appropriate to direct that the
investigating officers be careful and be guided by the principles
stated in Joginder Kumar , D.K. Basu , Lalita Kumari and Arnesh
Kumar. It will also be appropriate to direct the Director General
of Police of each State to ensure that investigating officers who
are in charge of investigation of cases of offences under Section
498-A IPC should be imparted rigorous training with regard to
the principles stated by this Court relating to arrest. Thus,
direction issued in Rajesh Sharma relating to investigating
officers investigating complaints u/s.498-A of IPC shall be read
in
conjunction
with
the
direction
given
above.
[Paras 38 and 39] [49-D-G]
5. Insofar as direction relating to settlement is concerned,
it is modified to the extent that if a settlement is arrived at, the
SOCIAL ACTION FORUM FOR MANAV ADHIKAR v. UOI
MINISTRY OF LAW AND JUSTICE
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parties can approach the High Court under Section 482 of the
Code of Criminal Procedure and the High Court, keeping in view
the law laid down in Gian Singh, shall dispose of the same.
[Para 40] [50-A]
Joginder Kumar v. State of U.P and Others (1994) 4
SCC 260 ; D.K. Basu v. State of W.B. (1997) 1 SCC
416 : [1996] 10 Suppl. SCR 284 ; Lalita Kumari v.
Government of Uttar Pradesh and Others (2014) 2
SCC 1 : [2013] 14 SCR 713 ; Arnesh Kumar v. State
of Bihar and Another (2014) 8 SCC 273 : [2014] 8
SCR 128 - relied on.
Sushil Kumar Sharma v. Union of India and Others
(2005) 6 SCC 281 ; B.S. Joshi and Others v. State of
Haryana and Another (2003) 4 SCC 675 ; Brij Lal v.
Prem Chand and Another [1989] 2 SCR 612 ; Rajesh
Sharma and Others v. State of U.P. and Another
2017 (8) SCALE 313 ; [2017] 9 SCR 529 : Nilabati
Behera v. State of Orissa and Others (1993) 2 SCC
746 : [1993] 2 SCR 581; State of M.P. v. Shyamsunder
Trivedi and Others (1995) 4 SCC 262 : [1995] 1 Suppl.
SCR 44 ; Lakshmi Kant Pandey v. Union of India
(1984) 2 SCC 244 : [1984] 2 SCR 795 ; Vishaka and
Others v. State of Rajasthan and Others (1997) 6 SCC
241 : [1997] 3 Suppl. SCR 404 ; Common Cause (A
Registered Society) v. Union of India and Another
(2018) 5 SCC 1 ; Suresh Seth v. Commissioner, Indore
Municipal Corporation and Others (2005) 13 SCC 287
; Census Commissioner and Others v. R. Krishnamurthy
(2015) 2 SCC 796 : [2014] 11 SCR 463 ; N.D. Jayal
and Another v. Union of India and Others (2004) 9
SCC 362 : [2003] 3 Suppl. SCR 152 ; Rustom Cavasjee
Cooper v. Union of India (1970) 1 SCC 248 : [1970] 3
SCR 530 ; Premium Granites and Another v. State of
T.N. and Others (1994) 2 SCC 691 : [1994] 1 SCR
579 ; M.P. Oil Extraction and Another v. State of M.P.
and Others (1997) 7 SCC 592 : [1997] 1 Suppl. SCR
671 ; State of Madhya Pradesh v. Narmada Bachao
Andolan and Another (2011) 7 SCC 639 : [2011] 6
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SCR 443 : State of Punjab and Others v. Ram Lubhaya
Bagga and Others (1998) 4 SCC 117 : [1998] 1 SCR
1120 - referred to.
Case Law Reference
(2005) 6 SCC 281
referred to
Para 3
(2003) 4 SCC 675
referred to
Para 4
[1989] 2 SCR 612
referred to
Para 5
[2017] 9 SCR 529
referred to
Para 9
[2014] 8 SCR 128
relied on
Para 22
(1994) 4 SCC 260
relied on
Para 26
[1996] 10 Suppl. SCR 284
relied on
Para 28
[1993] 2 SCR 581
referred to
Para 28
[1995] 1 Suppl. SCR 44
referred to
Para 28
[2013] 14 SCR 713
relied on
Para 29
[1984] 2 SCR 795
referred to
Para 35
[1997] 3 Suppl. SCR 404
referred to
Para 35
(2018) 5 SCC 1
referred to
Para 35
(2005) 13 SCC 287
referred to
Para 36
[2014] 11 SCR 463
referred to
Para 37
[2003] 3 Suppl. SCR 152
referred to
Para 37
[1970] 3 SCR 530
referred to
Para 37
[1994] 1 SCR 579
referred to
Para 37
[1997] 1 Suppl. SCR 671
referred to
Para 37
[2011] 6 SCR 443
referred to
Para 37
[1998] 1 SCR 1120
referred to
Para 37
SOCIAL ACTION FORUM FOR MANAV ADHIKAR v. UOI
MINISTRY OF LAW AND JUSTICE
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CIVIL ORIGINAL/APPELLATE JURISDICTION: Writ Petition
(Civil) No.73 of 2015.
Under Article 32 of the Constitution of India
WITH
Criminal Appeal No. 1265 of 2017
Writ Petition (Criminal) No. 156 of 2017.
P. S. Narsimha, ASG, K. Radhakrishnan, Ms. Indira Jaising,
Sr. Advs., Ms. Indu Malhotra, V. Shekhar, Sr. Advs(ACs), Shivang Dubey,
Ms.Tanvi R. Nayar, Prashant Singh, Gaurav Aggarwal, Ms. Deepti
Gupta, Advs(ACs.), Ms. Charu Walikhanna, Dharmender Pal Singh,
Mrs. Vipin Gupta, Mahesh Srivastava, P. N. Puri, Vaibhav Manu
Srivastava, Pankaj Srivastava, Alok Singh, Ms. Surabhi Lata, Abhishek
Singh, Sandeep S. Deshmukh, Ms. Manju Jetley, Raghavendra Tripathi,
Mukul Singh, Ms. Arunima Dwivedi, R. R. Rajesh, Gautam Sharma,
Ms. Sunita Sharma, Balram Das, B. Krishna Prasad, M. K. Maroria,
Shadan Farasat, Ms. Aanchal Singh, Ms. Rudrakshi Deo, Pramod Dayal,
Rajesh Kumar, Roopenshu Pratap Singh, Dr. Alok Sharma, Naresh
Kumar, Gurmeet Singh Makker, Gaurav Agrawal, Shashank Shekhar,
Umang Shankar, Namit Saxsena, Ms. Sindhu T. P., R. Beniwal, Bineesh
K., Arushi Singh, P. V. Dinesh, Ms. Kirti Singh, Ms. Pallavi Langar,
Ms. Nupur Agrawal, Advs. for the appearing parties.
The Judgment of the Court was delivered by
DIPAK MISRA, CJI. 1. Law, especially the criminal law, intends
to control, if not altogether remove, the malady that gets into the spine of
the society and gradually corrodes the marrows of the vertebrae of a
large section of the society. A situation arises and the legislature,
expressing its concern and responsibility, adds a new penal provision
with the intention to achieve the requisite result. When a sensitive legal
provision is brought into the statute book, the victims of the crime feel
adequately safe, and if the said provision pertains to matrimonial sphere,
both the parties, namely, wife and husband or any one from the side of
the husband is booked for the offence and both the sides play the victim
card. The accused persons, while asserting as victims, exposit grave
concern and the situation of harassment is built with enormous anxiety
and accentuated vigour. It is propounded in a court of law that the penal
provision is abused to an unimaginable extent, for in a cruel, ruthless and
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totally revengeful manner, the young, old and relatives residing at distant
places having no involvement with the incident, if any, are roped in.
Thus, the abuse of the penal provision has vertically risen. When the
implementation of law is abused by the law enforcing agency, the
legislature introduces a protective provision as regards arrest. Needless
to say, the courts have ample power to grant pre-arrest bail or popularly
called anticipatory bail and even to quash the criminal proceeding totally
to stabilize the lawful balance because no court of law remotely conceives
of a war between the two sexes. The courts remain constantly alive to
the situation that though no war takes place, yet neither anger nor vendetta
of the aggrieved section should take an advantage of the legal provision
and harass the other side with influence or espousing the principle of
sympathy. The role of the law enforcing agency or the prosecuting agency
is sometimes coloured with superlative empathy being totally oblivious
of the sensation to make maladroit efforts to compete with the game of
super sensitivity. Such a situation brings in a social disaster that has the
potentiality to vertically divide the society. The sense of sensitivity and
the study of social phenomenon are required to be understood with
objectivity. In such a situation, it is obligatory on the part of the legislature
to bring in protective adjective law and the duty of the constitutional
courts to perceive and scrutinize the protective measure so that the social
menace is curbed. We are, in the instant matters, focussing on Section
498-A of the Indian Penal Code, 1860 (for short, 'the IPC').
2. Section 498-A was brought into the statute book in the year
1983. The objects and reasons for introducing Section 498-A IPC can
be gathered from the Statement of Objects and Reasons of Criminal
Law (Second Amendment) Act of 1983 and read as under :-
"The increasing number of Dowry Deaths is a matter of serious
concern. The extent of evil has been commented upon by the
Joint Committee of the Houses constituted to examine the
working of Dowry Prohibition Act, 1961. Cases of cruelty by the
husband and the relatives of the husband which culminate in
suicide by, or murder of the hapless woman concerned, constitute
only a small fraction of the cases involving such cruelty. It is,
therefore proposed to amend the Indian Penal Code, Code of
Criminal Procedure and the Indian Evidence Act suitably to deal
effectively not only with cases of Dowry Death but also cruelty
to married woman by their in laws.
SOCIAL ACTION FORUM FOR MANAV ADHIKAR v. UOI
MINISTRY OF LAW AND JUSTICE [DIPAK MISRA, CJI]
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[2018] 12 S.C.R.
2. The following are the changes that are proposed to be made:-
(i) The Indian Penal Code is proposed to be amended to make
cruelty to a woman by her husband or any relative of her husband
punishable with an imprisonment for a term which may extend to
three years and also with fine. Willful conduct of such a nature by
the husband or any other relative of the husband as is likely to
drive the woman to commit suicide or cause grave physical or
mental injury to her, and harassment of woman by her husband or
by any relative of her husband with a view to coercing her or any
of her relatives to meet any unlawful demand for property would
be punishable as cruelty, the offence will cognizable if
information relating to the commission of the offence is given to
the officer in charge of a Police Station by the victim of the
offence or a relative of the victim of the offence or, in the
absence of any such relative, by any public servant authorized in
this behalf by the State Government. It is also being provided that
no court shall take cognizance of the offence except upon a
Police Report or complaint made by the victim of the offence or
by her father, mother, brother, sister or by her father's or mother's
brother or sister or with the leave of the court by any other person
related to her by blood, marriage or adoption (vide Clauses 2, 5
and 6 of the Bill.)
(ii) Provision is being made for inquest by Executive Magistrates
and for postmortem in all cases where a woman has, within seven
years of her marriage, committed suicide or died in circumstances
raising a reasonable suspicion that some other person has
committed an offence. Post-mortem is also being provided for in
all cases where a married woman has died within seven years of
her marriage and a relative of such woman has made a request in
this behalf (vide Clauses 3 and 4 of the Bill)
(iii)The Indian evidence Act, 1872 is being amended to provide
that where a woman has committed suicide within a period of
seven years from date of her marriage and it is shown that her
husband or any relative of her husband and subjected her to
cruelty, the court may presume that such suicide had been
abetted by her husband or by such relative of her husband (vide
Clause 7 of the Bill)
3. The Bill seeks to achieve the above objectives."
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3. Regarding the constitutionality of Section 498-A IPC, in Sushil
Kumar Sharma v. Union of India and others1, it was held by the
Supreme Court:-
"Provision of S. 498A of Penal Code is not unconstitutional and
ultra vires. Mere possibility of abuse of a provision of law does
not per se invalidate a legislation. Hence plea that S. 498A has no
legal or constitutional foundation is not tenable. The object of the
provisions is prevention of the dowry menace. But many instances
have come to light where the complaints are not bona fide and
have been filed with oblique motive. In such cases acquittal of the
accused does not in all cases wipe out the ignominy suffered
during and prior to trial. Sometimes adverse media coverage adds
to the misery. The question, therefore, is what remedial measures
can be taken to prevent abuse of the well-intentioned provision.
Merely because the provision is constitutional and intra vires, does
not give a licence to unscrupulous persons to wreck personal
vendetta or unleash harassment. It may, therefore, become
necessary for the legislature to find out ways how the makers of
frivolous complaints or allegations can be appropriately dealt with.
Till then the Courts have to take care of the situation within the
existing frame-work."
4. In B.S. Joshi and others v. State of Haryana and another2,
the Court observed:-
"There is no doubt that the object of introducing Chapter XX-A
containing Section 498A in the Indian Penal Code was to prevent
the torture to a woman by her husband or by relatives of her
husband. Section 498A was added with a view to punishing a
husband and his relatives who harass or torture the wife to
coerce her or her relatives to satisfy unlawful demands of dowry.
The hyper-technical view would be counter productive and would
act against interests of women and against the object for which
this provision was added. There is eveiy likelihood that nonexercise of inherent power to quash the proceedings to meet the
ends of justice would prevent women from settling earlier. That is
not the object of Chapter XXA of Indian Penal Code."
1 (2005) 6 SCC 281 : AIR 2005 SC 3100
2(2003) 4 SCC 675 : AIR 2003 SC 1386
SOCIAL ACTION FORUM FOR MANAV ADHIKAR v. UOI
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[2018] 12 S.C.R.
5. In Brij Lal v. Prem Chand and another3, this Court ruled
thus:-
"It would not be out of place for us to refer here to the addition of
Sections 113-A and 113-B to the Indian Evidence Act and
Sections 498-A and 304-B to the Indian Penal Code by
subsequent amendments. Section 113-A Evidence Act and 498-A
Indian Penal Code have been introduced in the respective
enactments by the Criminal Law (Second amendment) Act, 1983
(Act 46 of 1983) and Section 113-B of the Evidence Act and
304-B Indian Penal Code have been introduced by Act No. 43 of
1986. The degradation of society due to the pernicious system of
dowry and the unconscionable demands made by greedy and
unscrupulous husbands and their parents and relatives resulting in
an alarming number of suicidal and dowry deaths by women has
shocked the Legislative conscience to such an extent that the
Legislature has deemed it necessary to provide additional
provisions of law, procedural as well as substantive, to combat
the evil and has consequently introduced Sections 113-A and
113-B in the Indian Evidence Act and Sections 498-A and 304-B
in the Indian Penal Code. By reason of Section 113-A, the Courts
can presume that the commission of suicide by a woman has
been abetted by her husband or relation if two factors are present
viz. (1) that the woman had committed suicide within a period of
seven years from her marriage, and (2) that the husband or
relation had subjected her to cruelty. We are referring to these
provisions only to show that the Legislature has realised the need
to provide for additional provisions in the Indian Penal Code and
the Indian Evidence Act to check the growing menace of dowry
deaths..."
6. Presently, to the factual score. The instant Petitions have been
preferred under Article 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 Section 498-A IPC including their prevention,
investigation, prosecution and rehabilitation of the victims and their
children at the Central, State and District levels. That apart, prayer has
3 (1989) 2 SCR 612
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been made to issue a writ of mandamus to the respondents for a uniform
policy of registration of FIR, arrest and bail in cases of Section 498-A
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.
7. It has been averred by the petitioners that hundreds of women
are being subjected to horrific acts of violence often in the guise of
domestic abuse or to extract more money from the girl's natal family
due to absence of any uniform system of monitoring and systematic
review of incidents of violence against married women which has led to
dilution of the legislative intent behind Section 498-A IPC. And, in the
wake of ever increasing crimes leading to unnatural deaths of women in
marital homes, any dilution of Section 498-A IPC is not warranted.
8. It has been contended that Section 498-A IPC, since its
introduction, has increasingly been vilified and associated with the
perception that it is misused by women who frequently use it as a weapon
against their in-laws. As per the petitioners, though there is general
complaint that Section 498-A IPC is subject to gross misuse, yet there is
no concrete data to indicate how frequently the provision has been
misused. Further, the Court, by whittling down the stringency of Section
498-A IPC, is proceeding on an erroneous premise that there is misuse
of the said provision, whereas in fact misuse by itself cannot be a ground
to repeal a penal provision or take away its teeth.
9. It is set forth in the petition that Section 498-A IPC has been
specifically enacted to protect the vulnerable sections of the society
who have been victims of cruelty and harassment. The social purpose
behind Section 498-A IPC is being lost as the rigour of the said provision
has been diluted and the offence has practically been made bailable by
reason of various qualifications and restrictions prescribed by various
decisions of this Court including Rajesh Sharma and others v. State
of U.P. and another4, a recent pronouncement.
10. It has also been submitted by the petitioners that the police is
hesitant to arrest the accused on complaint of married women and the
same inaction is justified by quoting various judgments, 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
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41 CrPC. To prevent arbitrary and necessary arrest, the statute very
clearly states that the police shall record reasons for effecting arrest as
well as for not arresting.
11. The petitioners have also asseverated that there is lack of
monitoring mechanism to track cases registered under Section 498-A
IPC including systematic study of the reason of low convictions and due
to this absence, penal laws have not been able to secure a safe married
environment to women. This, as per the petitioners, has also resulted in
rise in cases under Section 498-A IPC because the deterrent effect of
the said provision is getting diluted. It is also the case of the petitioners
that investigation by the police of offence under Section 498-A IPC is
often unprofessional and callous and the investigating officers perceptibly
get influenced by both the parties which results in perpetrators escaping
conviction.
12. It is further contended that in many cases under Section
498-A, IPC the Court has not considered mental cruelty caused to the
woman but has concentrated only on any sign of physical cruelty due to
which the courts do not look into a case if the evidence does not show
that the woman was physically harassed. This has led the courts to
brand the woman on many occasions as hyper-sensitive or of low
tolerance level.
13. It has been further averred that the alleged abuse of the penal
provision is mostly by well-educated women who know that the offence
is both cognizable and non-bailable and impromptu works on the complaint
of the woman by placing the man behind the bars, but this cannot be a
ground for denying the poor and illiterate women the protection that is
offered by Section 498-A IPC against cruelty, rather there is a need to
create awareness specifically in the rural areas about the laws for
protection of women and consequent available remedies in case of breach.
14. It is also set forth in the petition that despite the Dowry
Prohibition Act, 1961 being passed, the irony still survives perhaps with
more oxygen, for the social evil of dowry is on the increase and is openly
practised with pride. It is put forth that women today are still tortured
and often the court, despite being the ultimate saviour, does not come to
the rescue of these women as a consequence of which an atmosphere
of ambivalence prevails and such societal ambivalence creates a situation
of war between two classes though in actuality the offence is relatable
to individuals. A sorry state of affairs is pronouncedly asserted.
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15. On the aforesaid bedrock, a prayer in Writ Petition (Civil) No.
73 of 2015 has been made to have a uniform policy of registration of
FIR, arrest and bail in cases of Section 498-A IPC. It is worthy to note
here that during the pendency of this Writ Petition, the judgment had
been pronounced in Rajesh Sharma (supra). The Court in Rajesh
Sharma (supra) issued the following guidelines:-
"19.i) (a) In every district one or more Family Welfare Committees
be constituted by the District Legal Services Authorities preferably
comprising of three members. The constitution and working of
such committees may be reviewed from time to time and at least
once in a year by the District and Sessions Judge of the district
who is also the Chairman of the District Legal Services Authority.
(b) The Committees may be constituted out of para legal
volunteers/social workers/retired persons/ wives of working
officers/other citizens who may be found suitable and willing.
(c) The Committee members will not be called as witnesses.
(d) Every complaint under Section 498A received by the police or
the Magistrate be referred to and looked into by such committee.
Such committee may have interaction with the parties personally
or by means of telephone or any other mode of communication
including electronic communication.
(e) 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.
(f) The committee may give its brief report about the factual
aspects and its opinion in the matter.
(g) Till report of the committee is received, no arrest should
normally be effected.
(h) The report may be then considered by the Investigating Officer
or the Magistrate on its own merit.
(i) Members of the committee may be given such basic minimum
training as may be considered necessary by the Legal Services
Authority from time to time.
(j) The Members of the committee may be given such honorarium
as may be considered viable.
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(k) It will be open to the District and Sessions Judge to utilize the
cost fund wherever considered necessary and proper.
ii) Complaints under Section 498A and other connected offences
may be investigated only by a designated Investigating Officer of
the area. Such designations may be made within one month from
today. Such designated officer may be required to undergo training
for such duration (not less than one week) as may be considered
appropriate. The training may be completed within four months
from today;
iii) 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 in the district to dispose of the proceedings
including closing of the criminal case if dispute primarily relates to
matrimonial discord;
iv) If a bail 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 by itself be a ground for denial of bail if maintenance
or other rights of wife/minor children can otherwise be protected.
Needless to say that in dealing with bail matters, individual roles,
prima facie truth of the allegations, requirement of further arrest/
custody and interest of justice must be carefully weighed;
v) In respect of persons ordinarily residing out of India impounding
of passports or issuance of Red Corner Notice should not be a
routine;
vi) It will be open to the District Judge or a designated senior
judicial officer nominated by the District Judge to club all connected
cases between the parties arising out of matrimonial disputes so
that a holistic view is taken by the Court to whom all such cases
are entrusted; and
vii) Personal appearance of all family members and particularly
outstation members may not be required and the trial court ought
to grant exemption from personal appearance or permit appearance
by video conferencing without adversely affecting progress of
the trial.
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viii) These directions will not apply to the offences involving
tangible physical injuries or death."
16. In the meanwhile, Writ Petition (Criminal) No. 156 of 2017
had been filed. A prayer had been made in the said Writ Petition to
implement the suggestion that out of three members, at least two members
should be appointed in the Family Welfare Committee. When this Writ
Petition was listed on 13.10.2017, the following order came to be passed:-
"Mr. Alok Singh, learned counsel for the petitioner though has a
different set of prayers in the writ petition, it fundamentally requires
this Court to implement directions rendered in Criminal Appeal
No.1265 of 2017 [Rajesh Sharma vs. State of U.P. and Another].
Additionally, learned counsel would submit that certain lady
members, certain organizations and welfare committees are to be
involved.
 At this stage, we are obligated to state that we are not in
agreement with the decision rendered in Rajesh Sharma (supra)
because we are disposed to think that it really curtails the rights
of the women who are harassed under Section 498A of the Indian
Penal Code. That apart, prima facie, we perceive that the guidelines
may be in the legislative sphere.
 Issue notice to the respondent Nos.1 to 3. No notice need
be issued to the respondent No.4. Even if the petitioner does not
take steps, the Registry shall see to it that the respondents are
served. Ms. Indu Malhotra and Mr. V. Shekhar, learned senior
counsel are appointed as Amicus Curiae to assist the Court in the
matter.
 List the matter on 29th November, 2017."
17. Mr. V. Shekhar, learned senior counsel, was appointed as
Amicus Curiae to assist the Court in the matter.
18. It was submitted by the learned Amicus Curiae that the decision
in Rajesh Sharma (supra) requires reconsideration, for the said judgment
confers powers on the Family Welfare Committee to be constituted by
the District Legal Services Authority which is an extra-judicial committee
of para legal volunteers/social workers/retired persons/wives of working
officers/other citizens to look into the criminal complaints under Sections
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498-A IPC in the first instance and further, there has been a direction
that till such time a report of the committee is received, no arrest should
be made. It is urged that the constitution of FWC to look into the criminal
complaints under Section 498-A IPC is contrary to the procedure
prescribed under the Code of Criminal Procedure.
19. It is further propounded that the directions in certain paragraphs
of the judgment in Rajesh Sharma (supra) 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. Elaborating the said
submission, it is canvassed that the High Court is empowered under
Section 482 CrPC to quash the proceeding if there is a settlement between
the parties. Learned Amicus Curiae further submitted that 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. Criticism has been advanced
with regard to the direction in paragraph 19(v) 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.
It is urged that if an accused does not join the investigation relating to
matrimonial/family offence, the competent court can issue appropriate
directions to the concerned authorities to issue Red Corner Notice which
will depend on the facts of the case.
20. Learned Amicus Curiae has further put forth that dispensation
of personal appearance of outstation family members is unwarranted,
for in a criminal proceeding, the competent court which deals with
application of exemption should be allowed to exercise the judicial
discretion and there should not have been a general direction by this
Court. Certain suggestions have been given by the learned Amicus
Curiae which we shall refer to at the relevant stage.
21. To appreciate the controversy, it is necessary to understand
the scope of Section 498-A of IPC. It reads thus:-
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"498-A. Husband or relative of husband of a woman
subjecting her to cruelty.-Whoever, being the husband or the
relative of the husband of a woman, subjects such woman to cruelty
shall be pun-ished 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 a nature as is likely to
drive the woman to commit suicide or to 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 or any person related to her to meet
such demand."
22. The said offence is a cognizable and non-bailable offence.
This Court in Arnesh Kumar v. State of Bihar and another5 has
observed that the said offence which is a cognizable and non-bailable
offence has lent it a dubious place of pride amongst the provisions that
are used as weapons rather than shield by disgruntled wives. The simplest
way to harass is to get the husband and his relatives arrested under this
provision. The Court has taken note of the statistics under "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.
Showing concern, the Court held that arrest brings humiliation, curtails
freedom and casts scars forever and the police had not learnt its lesson
which is implicit and embodied in the Criminal Procedure Code.
Commenting on the police, the Court said:-
 "It has not come out of its colonial image despite six decades of
Independence, it is largely considered as a tool of harassment,
oppression and surely not considered a friend of public. The need
for caution in exercising the drastic power of arrest has been
emphasised time and again by the courts but has not yielded desired
result. Power to arrest greatly contributes to its arrogance so also
the failure of the Magistracy to check it. Not only this, the power
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of arrest is one of the lucrative sources of police corruption. The
attitude to arrest first and then proceed with the rest is despicable.
It has become a handy tool to the police officers who lack sensitivity
or act with oblique motive."
23. The Court, thereafter, has drawn a distinction between the
power to arrest and justification for the exercise of it and analysed Section
41 CrPC. Section 41 stipulates when police may arrest without warrant.
The said provision reads as follows:-
"41.