Allahabad High Court lays down cooling period of two months before arrest in dowry cases, ignores Supreme Court’s precedents

Justice Rahul Chaturvedi passed the slew of directions in view of what he called, allegations of misuse of section 498A of the IPC.

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IN a judgment, which is likely to trigger a controversy of sorts, the Allahabad High Court has directed the police not to arrest the accused in a dowry case till the conclusion of the "cooling period" which the high court has fixed for two months from the registration of the First Information Report[FIR]. This cooling period, however, is not mentioned in the Indian Penal Code [IPC] or the Criminal Procedure Code [CrPC].

Justice Rahul Chaturvedi who passed the slew of directions, added that during the "cooling period", the matter would be immediately referred to the Family Welfare Committee [FWC] in each district.

The judge clarified that only those cases would be transmitted to FWC in which Section 498-A IPC along with no injury, Section 307 and other sections of the IPC in which the imprisonment is less than 10 years, have been invoked.

On the role of the FWC, the judge said, every complaint or application under Section 498A IPC and other allied sections would be immediately referred to the Family Welfare Committee by the concerned Magistrate.

After receiving the said complaint or FIR, the Committee shall summon the contesting parties along with their four senior elderly persons to have personal interaction and would try to settle down the issue/misgivings between them within a period of two months from its lodging.

The contesting parties are obliged to appear before the Committee with their four elderly persons (maximum) to have a serious deliberation between them with the aid of members of the Committee, the judge said. Besides, he directed that the Committee, after having proper deliberations, would prepare a vivid report and would refer to the concerned Magistrate/police authorities to whom such complaints are being lodged after expiry of two months by inserting all factual aspects and their opinion in the matter.

Also read: Supreme Court modifies its own 2017 ruling that had ordered constitution of 'family welfare committees' to look into veracity of Section 498A (cruelty/dowry) complaints

The said report given by the Committee should be under the consideration of Investigative Officer [IO] or the Magistrate on its own merit, and thereafter, suitable action should be taken by them as per the provision of the Code of Criminal Procedure after expiry of the "cooling-period" of two months.

Justice Chaturvedi has directed the Registrar General of the High Court to give wide circulation of his order to all the concerned including the Director General of Police [DGP], Uttar Pradesh, Chief Secretary, Principal Secretary (Law), and all the District & Sessions Judges to constitute and establish Family Welfare Committees and make them operational within a period of next three months positively. He has further ordered to issue a circular to this effect by all the concerned authorities attaching utmost sincerity and frame rules for the said purpose within a period of next two months.

The order was passed by Justice Chaturvedi in three revision petitions filed by the accused husband and his parents against the order of the Additional Sessions Judge who refused to discharge them of the offences under section 498A[Husband or relative of husband of a woman subjecting her to cruelty], 504[Intentional insult with intent to provoke breach of the peace], 506[Punishment for criminal intimidation.], 307[Attempt to murder.] 120-B[criminal conspiracy] IPC and Section 3/4 of Dowry Prohibition Act.

Also read: SC refers the PIL seeking reform of anti-dowry law to the Law Commission

Justice Chaturvedi explained that he was issuing this slew of directions in view of the allegation of misuse of section 498A of the IPC. However, he did not cite any reports or statistics to buttress his reasoning. He rather cited the decision of the Social Action Forum for Manav Adhikar Vs. Union of India, to say "the Court is proposing the safeguards after taking the guidance from the judgment of Hon'ble the Apex Court in the case of Social Action Forum for Manav Adhikar Vs. Union of India (Supra) keeping in view the growing tendency in the masses to nail the husband and all family members by general and sweeping allegations".

However, what the judge missed from the same very judgment was that in Social Action Forum case, the directions pertaining to Family Welfare Committee and its constitution by the District Legal Services Authority and the power conferred on the Committee were held to be wholly impermissible in law. A three-judge bench comprising the then CJI Dipak Misra and Justices A.M. Khanwilkar and D.Y. Chandrachud in Social Action Forum case had overruled the directions similar to what Justice Chaturvedi has issued now. These set of guidelines had been issued by a two-judge bench of the Supreme Court in Rajesh Sharma and others v. State of U.P. and another, which in Social Action Forum case got overruled.

The Supreme Court had noted that the legislature in its wisdom has made the offence under Section 498-A IPC cognizable and non-bailable. It said that the fault lies with the investigating agency, which sometimes jumps into action without application of mind.

The Supreme Court in Social Action Forum case underscored that the investigating officers should be careful and be guided by the principles stated in judgments namely Joginder Kumar v. State of U.P and others,  D.K. Basu v. State of W.B. Lalita Kumari vs. Uttar Pradesh and Arnesh Kumar vs. State of Bihar. All these judgments seek to put a check on investigating agencies so that they do not abuse the power and arrest people at their whims and fancies.

Justice Chaturvedi, however, has totally overlooked the ratio of the Supreme Court's judgment in Social Action Forum.  

The factual controversy before Justice Chaturvedi included allegations of dowry and sexual harassment made by the wife against her husband and in-laws.

The Additional Sessions Judge (Fast Track Court ­I), Hapur, refused to discharge the husband and his parents from the charges.

Allowing the revision petition filed by the wife's in-laws, Justice Chaturvedi expressed his disbelief on the allegations of wife against her in-laws.

"The stray and tangent allegations of demanding dowry by father¬in¬law and mother¬in-law would not bring them within four corners of Section 498-A IPC", Justice Chaturvedi held.

The judge, however, refused to quash the Sessions Judge order refusing to discharge the husband.  At the same time, the judge castigated the wife for what he described as 'filthy and 'distressful' allegations against her in-laws.

Justice Chaturvedi did not stop here. He went on to make sweeping remarks on the dowry cases. He said "it is a question of a common observation that every matrimonial case is being exaggerated manifold with all the pungent and castic allegations of dowry-related atrocities involving the husband and all family members". Yet again, he made no effort to amplify his observations, to provide them with the required context.

Also read: SC quashes 'general and omnibus' allegations against in-laws in a dowry case

In a case which had nothing to do with live-in-relationship, Justice Chaturvedi stated that in the metro cities, the doctrine of 'live-in relationship' has silently sneaked into our socio-cultural ethos by replacing our traditional marriages by its new modern abrasion in the name of 'live-in relationship'.

"This is a ground reality and one has to accept it willy-nilly which is nowhere similar to our traditional marriage", he claimed.

 "It is defined as domestic cohabitation between adult couples who are not married. It is a stress-free companionship without any legal obligation, it has many complications, responsibilities and legal liabilities. It is a voluntary agreement in it that unmarried male or female decides to live together in one roof in a sexual and romantic relationship which seems to be marriage in alternative or substitute to the traditional marriage in which unmarried couple lives together without marrying with each other free from its legal implications, committment and responsibilities", he opined.

Justice Chaturvedi's judgment smacks of the personal and conservative views of an individual judge  on the issue of marriage, family and live-in relationships rather than a discussion of the seminal legal issues before him to decide. It is a clear case of a judge exceeding the jurisdiction to pass moral judgment on a host of issues, which are not before him to adjudicate.

Click here to read the judgment.