Restraining the Arrest of the Accused in 498A Cases

Enough laws exist in India to protect women from domestic, matrimonial and sexual violence. They, according to women activists, are good only in paper. On one hand the women continue to suffer under violence with no much hope for the victims to have easy access to justice despite having those laws on our statute book. On the other, some of these provisions are largely being misused by educated and powerful sections of disgruntled women as a sharp weapon, rather than a shield, to harass their innocent husbands and their relatives. Even bed-ridden relatives and those living abroad were put under arrest and detention in a quite number of cases. The Section 498A of Indian Penal Code (IPC) is one such provision, now under limelight for unleashing what is called legal terrorism.

The Section 498A, when inserted into the Code on 25 December 1983, had a laudable purpose to serve - to prevent the husband of a woman or his relatives subjecting the women to cruelty on the matter of dowry. Cruelty under this provision means far more than mere harassment, but it includes every kind of willful conduct causing grave mental / physical injury to her health / life, or putting her to harassment for unlawful demand for money / property or driving her to commit suicide. The provision is intended to check outrageous demands by greedy husbands and their relatives driving women to any kind of cruelty.

Somehow the provision, which has not been serving much useful purpose as per the version of activists, is now in the headlines because of its sheer misuse by a section of over-smart women. They raise exaggerated account of allegations of cruelty with no much substantive evidence, as an easy short cut to bring them to forced settlement of some other family disputes. Therefore considering the continuing harassment of innocent husbands and their family members over the years, the Supreme Court (SC) in Rajesh Sharma V State of Allahabad case delivered on 29th July 2017 comes out openly against the misuse of the provision and harassment of such innocent ones based on false complaints. The court issued a slew of provisional directions to deal with the misuse.

The court directed that immediate arrest of the person accused of charge under the section 498A should not be made in a blind manner. It proposes to set up Family Welfare Committees (FWCs) by the District Legal Services Authority (DLSA) consisting of 3 members. The Committee has to look into every complaint under this section and submit a report to the magistrate/ police as the case may be, to aid them in taking a decision on whether to arrest the accused or not. The court incorporated the above said non-governmental committee into the scene as a means to preventing the gross misuse of the provision. Arrest will have to be made only after considering the report by the police or magistrate. If any foul play by husband/relatives is clearly visible in the report, the police will have to arrest the accused without any delay.

The probe into the complaint under this provision is to be done only by a specifically designated investigating officer of the area. The apex court, in addition, proposes for speedy disposal of bail plea in such cases with one days notice to the public prosecutor / complainant and directs the court below to carefully weigh the facts of the case while disposing it. The SC decries the practice of impounding of passports or issuing Red Corner Notice to those living abroad and bringing all family members to the court in complaints under the section, except in cases involving tangible physical injuries.

Earlier in Sushil Kumar Sharma v. Union of India case in 2005, the SC observed that complaints under section 498A were being filed on personal vendetta and a new legal terrorism can be unleashed by misusing the provision. The court also suggested that the legislature should explore how the frivolous complainants can be dealt with. The court in its verdict warned that if cry of "wolf" is made too often as a prank, assistance and protection may not be available when the actual "wolf" appears.

Similarly in 2013 in Lalita Kumari case, the SC directed that a preliminary enquiry must be conducted so as to ascertain whether the First Information Statement reached at the police station reveals a cognizable case in matrimonial or family disputes, before filing an FIR.  This must be done within a period not exceeding seven days.

Again on 2nd July 2014 in Arnesh Kumar V State of Bihar & another case, the SC had issued a checklist for the police to consult before making any arrest under Section 498A. The court, in addition, asked the law ministry to consider amending the law. The verdict instructed all the State Governments not to make immediate arrest when a case under section 498A comes up and arrests must be made only when there is overt and covert action of violence amounting to ‘cruelty’ as defined under the section.

In the present Rajesh Sharma case, the Court acknowledges the judicial recognition of the misuse of the 498A cases in a slew of verdicts issued earlier and highlights the need to prevent such misuse. The court provides some statistics too in support of its reasoning. It states that in 2012 nearly two lakh people were arrested on account of 498A and a quarter of them were women. The percentage of charge sheet filing for 2012 was 93.6 whereas the conviction was at a low rate of 14.4 percent.

The order reaffirms that arrests were made as part of frivolous complaints and reminds that arrest and judicial remand are not the answers to matrimonial disputes. Since the judiciary has the duty to punish the guilty and protect the innocents, arrest of the innocent husband and his family members cannot be justified if the case is a false one.

Even though the Section 498A gets attracted only when the wife is subjected to grave injury or a situation dangerous to her life, the police and courts do pay little attention to this fact. Many of the complaints filed under their section have been done on the spur of a moment without paying much attention to the later consequences. An uncalled for arrest and an insensitive investigation may perpetually spoil any chance for settlement of the family dispute and may end up in destruction of the matrimonial relation.  

In the verdict, the court says it is not the duty of the court to legislate but the court does just the opposite. It sets up the FWC, which in normal case be not well equipped to validate the scope of the word ‘cruelty’ under the section 498A, as an intermediate layer between the victim and criminal justice system, to make a report to validate the ingredients of the complaint.  The court however suggests that the women’s cell of the police should have a well balanced and well equipped team of officers with the abilities of persuasion, patience and forbearance.

The new verdict has brought nothing substantial compared to the earlier ones it refers to. The key difference it offers is in the procedural part. The role of women’s Cell is replaced with FWCs in recommending arrest after due consideration of the facts obtained from the parties of the complaint to be called upon to give details. The possibility of husband harass a women with cruelty and narrates before the committee a vivid believable story resembling a fairly tale that the women filed a false complaint misusing the law still exists. There is possibility for the other way round also. The FWC consisting of para-legal volunteer, retired persons or activists need not be better placed in sifting the truth from the two narratives. No doubt, no husband will suo moto accept a dowry harassment charge however true it is.

It seems it would be far better if we could do something to sensitise and train the police and judiciary on how to deal with false cases rather than incorporating new committees with possibly ill-equipped non-governmental members in the delicate issue of putting the accused under arrest. Setting up of the FWC cannot be fair substitute for faultless women friendly police investigation which should be evolved in due course by perpetually sensitizing and training the officers. If we cannot make qualitative changes in the police functioning and scrap its unethical and unlawful actions, we are unfit for a regime of rule of law. Improving our policing is the sine qua non for preventing malafide arrests and reducing crimes in our society.

The problem of Section 498A is that it can neither prevent nor reduce anti dowry harassments substantially. But it unnecessarily brings in many innocent people to the scenario of criminal prosecution. The right solution in this issue is to make the legal provision well balanced by including punishment for those who file false cases along with stern action on the wrong doers. The provision will serve its right purpose only when it must be able both to protect women from unjustifiable harassment and to keep the innocent relatives away from undue prosecution - which is more painful than the punishment itself, in Indian scenario.

NB: The author, now with Thrissur Bar, can also be reached at rajankila@hotmail.com