Interpretation of Section 498A IPC: Conflicting judicial decisions and overstepping the legislature

The possibility of misuse of a provision does not become a ground to either repeal the provision or to take away its essence, as has been recently done by the Allahabad High Court.

—–

Why was Section 498A IPC in the news recently?

RECENTLY, a single judge-bench of the Allahabad High Court issued certain directions with respect to Section 498A of the Indian Penal Code, concerning cruelty with a woman by her husband or his relatives. The decision has been passed in the light of "rising misuse of Section 498A and the increasing tendency of women to rope in the relatives of the husband in the matrimonial disputes without proper deliberations", read the judgement.

Broadly speaking, these directions prohibit the police from making any arrest during the "cooling-period" of two months beginning from the registration of the First Information Report ('FIR') or the complaint under section 498A with no injury, Section 307 (attempt to murder) or the other sections of the IPC providing for imprisonment of less than ten years. Meanwhile, such cases would be transferred to the Family Welfare Committee ('FMC') of the concerning district, which after proper deliberation, would prepare a report on the case, to be transferred to the Magistrate after the expiry of such "cooling period".

The judge also made reference to the Supreme Court's decision in the case of Social Action Forum for Manav Adhikar versus Union of India (2018)  to support his decision and issue such directions.

Now, in Social Action Forum for Manav Adhikar, a three-judge bench of the court had reconsidered the judgement passed by a two-judge bench of the court in Rajesh Sharma versus State of UP (2017), which issued similar directions, conferring FMCs with the power to look into cases of section 498A and submit a report, prior to which no arrest could be made. Interestingly, the Supreme Court, while calling the establishment of the FMCs and conferment of such powers for the purpose of section 498A erroneous, declared the directions to such an extent as impermissible.

The directions issued in the current Allahabad High Court judgement are not only in direct conflict with the Supreme Court's decision, but the judge has seemed to misinterpret the latter decision as well.

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

What is the object and purpose of Section 498A?

Section 498A of the IPC was introduced via the Criminal Law (Amendment) Act, 1983 to curb the menace of dowry demand which usually leads to cruelty towards the wife by her husband and his relatives. The section makes cruelty with a woman by her husband or his relatives punishable with imprisonment extending to three years and fine. Further, the term 'cruelty' under section 498A includes "any wilful conduct [by the husband or his relatives] which … 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", and "harassment of the woman … to coerc[e] her or any person related to her to meet any unlawful demand for any property or valuable security".

Section 498A makes cruelty towards the wife a cognizable, non-compoundable and non- bailable offence.

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

How have courts dealt with challenges to the provision on grounds of misuse?

It is not for the first time that the broad ambit of section 498A has been challenged before the court of law. There have been various instances where the section has been challenged for its possible misuse, which is even acknowledged by the judiciary in multiple cases.

In fact, the section was challenged on constitutional grounds before the Supreme Court in the case of Sushil Kumar Sharma versus Union of India & Ors. (2005). The court, while upholding the section, stated that a "mere possibility of abuse of a provision of law does not per se invalidate the legislation". However, the court also directed the legislature to look into ways in which the makers of frivolous complaints can be dealt with.

Further, in the case of Preeti Gupta versus State of Jharkhand (2010), the Supreme Court, while acknowledging the misuse of section 498A in terms of exaggerating the facts of the case, remarked that there is an urgent need for the legislature to relook into the provision.

Meanwhile, various high courts have also taken note of the misuse of section 498A, and have issued directions to ensure that caution is exercised while making an arrest of the husband and his relatives under section 498A without losing on the possibility of reconciliation between the parties.

For instance, the Delhi High Court, in Chander Bhan versus State (2008)  directed the Delhi Police to register an FIR under section 498A only after scrutinising the complaint carefully and that too against such persons against whom "strong allegations of causing any physical or mental cruelty" exists along with breach of trust. Further, the arrest of the main accused should be made after conducting thorough investigation with the prior approval of the Assistant Commissioner of Police/Deputy Commissioner of Police ('DCP'). Arrest of any collateral accused such as father-in law or mother-in- law can be made only after prior approval of the DCP. Lastly, the court emphasised on attempting reconciliation before the registration of FIR, and if no possibility of reconciliation is found, then the necessary steps shall be taken.

The Supreme Court again, in Arnesh Kumar versus State of Bihar & Anr. (2014)  directed all state governments to instruct their police to not make any arrest under section 498A automatically without being satisfied about the necessity of the arrest as per the parameters provided under Section 41 (when police may arrest without warrant) of the Code of Criminal Procedure, 1973 ('CrPC'). Further, the police are mandated to furnish reasons for authorising arrest as well as for not making any arrest, to the Magistrate for further actions.

Also read: Petition on Sec 498A heard in SC, are women really 'misusing' the law?

What are Family Welfare Committees, and why were they set up?

Addressing the rising instances of frivolous complaints under section 498A of the IPC by women, the Supreme Court, in Rajesh Sharma, issued certain guidelines as a measure to prevent the misuse of section 498A. The court emphasised upon the harassment that innocent family members have to go through as a result of such complaints, along with the loss of any chance of reconciliation between the parties.

Therefore, in order to overcome the problem, the court felt the need of involving the civil society in the aid of administration of justice, thereby laying down the foundation stone of Family Welfare Committees (consisting of para legal volunteers/social workers/retired persons/wives of working officers) in each district, to look into complaints under section 498A (excluding offences including tangible physical injuries) and submit its report, prior to which no arrest can be made. The court further empowered the District and Session Judge or any other senior judicial officer to close the criminal case if a settlement is reached between the parties in case of such matrimonial dispute.

These directions not only empowered an extra-judicial committee to look into criminal charges, but also curtailed the rights of the women who actually face harassment by their husband and his relatives. Therefore, a three-judge bench of the Supreme Court reconsidered the directions issued in Rajesh Sharma and held them to be erroneous in Social Action Forum for Manav Adhikar. The bench held the constitution of FMCs for dealing with criminal charges beyond the provisions of the IPC and the CrPC. Further, conferring the power to close a criminal case in case of settlement to the District and Session judge was held to be impermissible, as the power to quash criminal proceedings (which are not compoundable) rests solely with the high court under Section 482 (inherent power of High Court) of the CrPC.

Despite this Supreme Court judgement, the recent Allahabad high court decision provides for the constitution of similar FMCs with minor changes such as inclusion of a mediator or an advocate or a senior law student in the committee, and applies to all cases involving section 498A with no injury, section 307 (attempt to murder) and all other offences of the IPC punishable with imprisonment of less than ten years.

These directions are not only in direct conflict with the Supreme Court's judgement, but are beyond the jurisdiction of the high court, when the scheme on investigation and arrest is pretty clear under the CrPC, leaving no gap in the law to be filled through fresh interpretation.

Also read: Supreme Court on Section 498A says no to family welfare committees, but still legitimises the anti-women 'misuse' argument

What are the possible solutions?

As stated earlier, the misuse of section 498A by women has been judicially acknowledged in multiple cases. However, the possibility of misuse of a provision does not become a ground to either repeal the provision or to take away its essence, as has been done by the Allahabad high court.

Various provisions of the CrPC provide for checks and balances for the offence of cruelty. As per Section 41, "the police is required to provide for reasons for effecting arrest as well as for not effecting the same." A plain reading of section 41 makes it clear that any person accused of any offence punishable with imprisonment extending to seven years cannot be arrested by the police on their personal satisfaction that the person has committed a crime; the police has to be satisfied that arrest is necessary for the investigation, or to prevent the accused from tampering with the evidence or threatening the witness, or prevent the accused from committing any other offence.

The Supreme Court addressed the concerns pertaining to human rights pre and post arrest in Joginder Kumar versus State of UP (1994)  and held that no arrest should be made on mere allegations, without reasonable satisfaction with regards to the genuineness of the complaint. Keeping in mind the fundamental right to personal liberty and freedom, the police must have certain reasonable justification with regards to the necessity of arrest. Further, the court laid down certain guidelines with respect to arrests in its landmark judgment in D.K. Basu versus State of WB & Ors. (1996) in order to effectuate the constitutional safeguards provided to the accused. Ensuring that these guiding principles on arrest are strictly adhered to by the investigating officers is another way of preventing the misuse of the provision.

Moreover, several recommendations have also been issued by various legal institutions of the country to prevent the misuse of the section. The 243rd Report of the Law Commission of India and the 140th Report of the Rajya Sabha Committee on Petitions recommended an amendment to section 498A to make the offence compoundable so that a compromise can be arrived at by the parties with or without the permission of the competent court. The legislature can also consider making the offence of cruelty bailable.

Also read: Women to the Supreme Court: "We are not liars", protest against dilution of Section 498A

Unless changes are brought in via any amendment by the legislature, directions like these which are issued by the judiciary cannot be enforced, for the directions not only render the provision ineffective, but they potentially fall within the ambit of the legislature.

Following the Allahabad high court's directions would not only violate the Supreme Court's decision, it would also curtail the rights of women who are actually harassed by their husbands and his relatives. Undoubtedly, the constitution of the FMCs to look into a criminal charge and stalling arrest till the submission of its report is against the provisions of the CrPC.

Though there have been various instances where the Supreme Court has issued directions due to lack of any legislation to fill the void, the high court in this case acted beyond its jurisdiction while issuing these directions when the scheme of investigation and arrest is pretty clear in the law, with no ambiguity or gap requiring fresh interpretation.

Therefore, the current position of law would be to stick to the Supreme Court's decision in Social Action Forum for Manav Adhikar, and follow the guiding principles on arrest as has been issued by various courts from time and again until the legislature itself amends the provision to prevent its misuse.