The Chief Justice of India Dipak Misra with Justice A M Khanwilkar and Justice D. Y. Chandrachud in Supreme Court took up for hearing the case of Nyaydhar v. Union of India Ministry of Home Affairs and Ors. on 29.07.2017. The petitioners prayed that the Supreme Court implement the directions issued in the matter of Rajesh Sharma v. The State of Uttar Pradesh on 27.07.2017 by appointing NGOs on the welfare committees directed to be put in place by Justice Lalit and Justice A.K. Goel. The CJI, Justice A.M. Khanwilkar and Justice D.Y. Chandrachud disagreed with the judgement in Rajesh Sharma matter dated 27.07.2017 by order dated 13.10.2017.
'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.'
The judgement in Rajesh Sharma matter was a result of Special Leave to Appeal (Crl) No. 2013 of 2017, filed by the husband Rajesh against his wife Sneha.
Sneha Sharma wife of Rajesh Sharma had filed a complaint under section 498A, 323, 504, 506 IPC along with section 3 and 4 of the Dowry Prohibition Act against her husband Rajesh Sharma, father-in-law, mother-in-law, brother-in-law and sister-in-law in the court of Chief Judicial Magistrate.
Sneha herself is a woman who had studied up to class 12 when she was married off to Rajesh by her parents. In her own words, 'after the marriage, there was incessant demand for dowry'. Sneha has a three year old daughter. She was turned out of the matrimonial home along with her daughter with empty hands. She had the full support for her natal family and is now staying with her father along with her three year old daughter. Her father advised her to 'forget' about the cruelty but she says 'How can I forget the cruelty heaped on me and more particularity how can I forget that my husband owes a responsibility to his own daughter who he has rendered homeless?' She filed a complaint under section 200 CrPC for an investigation into the cruelty meted out to her under Section 498A.
The court after considering the documents brought on record only summoned the husband of the complainant by the order dated 14.07.2014. Being aggrieved by the fact that her parents-in-law with whom she lived in a joint family were not summoned, though named in her complaint, she filed a revision against the order of Chief Judicial Magistrate in the court of Additional Sessions. The order of the Chief Judicial Magistrate was set aside and the trial court was directed to take a decision after giving the complainant the opportunity of hearing. The court of Chief Judicial Magistrate, after hearing counsel for the complainant, considered the complaint and recorded the statement of the complainant under Section 200 of CrPC, as well as the statements of the 2 prosecution witnesses were recorded under Section 202 CrPC, passed the summoning order to all 5 accused by the order dated 18.08.2015. All 5 accused filed a petition under Section 482 CrPC to the High Court for quashing the order dated 18.08.2015. The High Court directed the parties to settle the matter through mediation by order dated 11.01.2016. Mediation was unsuccessful. The High Court then rejected the petition under Section 482 CrPC by order dated 18.01.2017. The family had to face the trial. Her husband filed a Special Leave Petition against this order.
The order of the Supreme Court dated 27.07.2017 of Justice Lalit and Justice Goel, makes no mention of the facts of the case or the merits of the case. Instead, it took into account the National Crime Records Bureau(NCRB) data on conviction and acquittal under section 498A and reached the conclusion that since the conviction rate under Section 498A was low, the conclusion was that women were 'misusing' the law and filing complains to seek revenge from the husband and his family on 'trivial issues'. The Supreme Court put guidelines in place as precautionary measures to ensure that 'unwarranted' numbers of arrests under Section 498A were not made.
The court directed setting up of family welfare committees all over the country to look into the complaints under section 498A before it is investigated into by the Investigating officer/ Police Officer etc and directed the parties to approach the trial court for further orders in light of the directions.
On being asked whether she was represented in the Supreme Court, she said 'I could not afford representation in the Supreme Court, so I did not engage a lawyer'. The order of the court however, shows her as being represented by a person who she does not know and has never met.
Be that as it may, the directions were met with a unanimous rejection by the women's movement and a rare show of discontent by wome n's groups who demonstrated before the Supreme Court and have field review petitions in court.
These directions, to say the least, are curious and appear to subvert the due process of law.
“Para 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.
Nyaydhar, a women's group form Aurangabad, headed by a woman who is a lawyer, filed a curative petition, demanding that there should be representation from women's groups in these welfare committees. When the petition came up for hearing on 13.10.2017, the Bench presided over by the CJI recorded their disagreement with the directions, giving legitimacy to the grievances of the women's movement. It was stated that they went counter to the provisions of the CrCP in the matter of investigation of crime. The court went on to appoint amicus to assist the court.
'Ms. Indu Malhotra and Mr. V. Shekhar, learned senior counsel are appointed as Amici Curiae to assist the Court in the matter.'
On 29.11.2017, CJI had asked the counsel of petitioner in Nyaydhar matter what the purpose was of issuing guidelines for implementation of the judgement dated 27.07.2017. More so, he observed that the committee of Family Welfare, since it comprises of wives of Public Officers and Retired senior officers, does not have the adequate skills to investigate a cognizable offence.
Section 498A is a cognizable offence under IPC for which there is an established procedure under CrPC to file, investigate and proceed with the trial. The matter is now listed for hearing in the third week of January.
Sneha's case is particularly important as she did not file an FIR under Section 498A, but filed a complaint under Secion 200 of the CrPC. It was only after the application of judicial mind that the court came to the conclusion that the family members were also involved in the crime of cruelty. Without setting aside that order on merits, the Supreme Court had no jurisdiction to come to the conclusion that there had been a 'misuse' in her case and direct her to approach the trial court for 'further orders'.
This dangerous tendency of the courts to generalize without reference to the facts of the case, has lead to a failure of justice, not only for Sneha but for all women who face cruelty in the matrimonial home.
It seems the court was not made aware of the checks and balances that exist within the system. All police stations in the country now have a 'women's cell' staffed by senior women police who are tasked with the duty to mediate the dispute before any FIR is registered. These guidelines also seem contrary to the ruling of the court in Lalita Kumari v. State of U.P (2014) 2 SCC 1). The court, in the Rajesh Sharma judgement, has now bypassed the law declared by the Supreme Court itself rendering all such women's cells in police stations irrelevant and setting up instead parallel mediation centres for complaints of cruelty.
The constitutionally and legality of the guidelines is highly suspect in the light of the mandatory duty of the police to investigate crime. Writing in the Indian Express, Ms. Indira Jaising, Lawyers Collective, says 'Apart from giving a long rope to the accused to abscond, this is virtual privatisation of the policing function. That the members of the committee will be given remuneration makes it a parallel justice dispensation system. Only after the report of the welfare committee is submitted, can the police perform the policing function.'
The judgment of 27.07.2017 has relied upon the data of the NCRB of 2005, 2012 and 2013. Relying on the figures of the number of people arrested, convicted and acquitted, it came to the conclusion that since the conviction rate is low, most of the cases registered under Section 498A are "false". This data does not give a clear picture as there can be a number of reasons for acquittal, such as poor investigation by the investigating officer, settlement through mediation, or intimidation of witnesses and the complainant herself.
The NCRB data, which is relied upon by the Court, indicates that in 2011, a total of 1,14,372 cases were registered under crimes against women in matrimonial homes. The Court does not correlate the data from NFHS-3 which indicates that in the same year there were at least 59 million women who experienced some form of physical or sexual violence in the preceding 12 months.
These are self-contradictory figures by two separate government agencies. It not only indicates a poor co-ordination amongst all functionaries of the government agencies but also shows how women, despite the violence, do not approach the Police. It wouldn't be wrong to conclude that if the rate of conviction is low under Section 498A, it's not because women try to put the husbands and their families behind bars but to the contrary they try to save their marriages and households till they reach the point when all avenues of justice are closed to them. This shows not only that there is no 'misuse' but on the contrary that women tolerate domestic violence in the hope that things will change as the marriage is more important to them than anything else in life.