New directives to prevent misuse of Section 498-A, which aims to tackle dowry death

Many groups working for protection of men’s rights have been critical of its frequent misuse and want it to be scrapped.

By CBP Srivastava | Updated: Jan 07, 2018, 12:15 PM IST

The Supreme Court while hearing a Special Leave Petition (SLP) in Rajesh Sharma vs. State of UP 2017 has provided safeguards against alleged misuse of Section 498-A of the Indian Penal Code (IPC). Section 498 A deals with marital disputes however, many groups working for protection of men’s rights have been critical of its frequent misuse and want it to be scrapped.

The section was enacted to combat the menace of dowry deaths. It was introduced in the code by the Criminal Law Amendment Act, 1983 (Act 46 of 1983). By the same Act section 113-A has been added to the Indian Evidence Act, 1872 to raise presumption regarding abetment of suicide by married woman. The main objective of section 498-A of IPC is to protect a woman who is being harassed by her husband or relatives of husband.

According to the National Crime Records Bureau, only 1,13,403 cases were registered in the country during 2015 under Section 498A. That is a mere 0.1 per cent of the women who have faced marital violence. Of the 1.13 lakh cases filed under the Section in 2015, 90 per cent were charge-sheeted while only 3,314 cases fell through for being ‘mistake of fact or of law’.

The Supreme Court held that it had earlier noticed the fact that most of such complaints were filed in the heat of the moment over trivial issues. Many of such complaints are not bona fide. At the time of the filing of the complaint, implications and consequences are not visualised. This results in harassment of family members and may “hamper any possible reconciliation and reunion of a couple”.

In this backdrop, the court has issued directives to prevent the misuse.

1. All the state governments will instruct the police officers not to arrest automatically when any case under section 498-A of IPC is registered. They will make sure that such arrest must satisfy the provisions laid down under section 41 of Civil Procedure Code.

2. All the police officers will be provided with check list containing specified sub-clauses under section 41(1)(b)(ii).

3. The police officer shall forward the check list along with the reasons and materials which necessitated such arrest, while producing the accused before the Magistrate for any further detention.

4. The Magistrate while authorising detention of the accused shall examine the report furnished by the police officer and only after being satisfied will authorise further detention.

5. If the police officer decides not to arrest any accused, then such decision should be forwarded to the Magistrate in writing along with the reasons behind such decision within two weeks from the date of the institution of such case.  A copy of it shall be forwarded to the Magistrate which may be extended by the Superintendent of police of the district.

6. Notice to appear in terms of Section 41-A of CrPC shall be served to the accused within two weeks of the institution of the case which may be extended by the superintendent of police of the district for the reasons to be recorded in writing.

7. If the police officer fails to comply with the aforesaid directions, then they will be liable for departmental actions and shall also be liable for to be punished for Contempt of Court. Such cases should be instituted before the High Court having territorial jurisdiction.

8. If a Judicial Magistrate authorises detention without recording the reasons as aforesaid, then he shall be liable for departmental action by the appropriate High Court.

9. The aforesaid directions shall not only apply to cases under section 498-A of Indian Penal Code,1860 and section 4 of the Dowry Prohibition Act,1961 but also in such cases where offence is punishable with punishment for a term which may be less than seven years or which may extend to seven years, whether with or without fine.

10. A copy of this judgment shall be forwarded to the Chief Secretaries as also the Director Generals of Police of all state governments and the Union Territories and the Registrar General Of all High Courts for onward transmission and ensuring its compliance.

There have also been judgments that have laid down procedural safeguards to prevent any possible misuse of Section 498A. For instance, in Arnesh Kumar versus State of Bihar (2014) 8 SCC 273, the Supreme Court restrained police from making automatic arrests until they were satisfied that it was necessary to prevent such persons from committing any further offence, or for proper investigation of the case, or to prevent the accused from making any inducement or threat etc.

Similarly, in Lalita Kumari versus State of Uttar Pradesh (2014) 2 SCC 1 the Court said police have to conduct a preliminary enquiry before registering an FIR under 498A. In Sushil Kumar Sharma versus Union of India AIR 2005 SC 3100, the apex court went to the extent of stating how through “misuse of the provision, a new legal terrorism can be unleashed” and exhorted the legislature to come up with deterrents in the law to prevent such ‘frivolous’ complaints.

In Rajesh Sharma case, the main issue brought up before the court was whether there was a mandate to check the provision’s reach when it came to roping in all family members to settle a matrimonial dispute and cruelty under section 498A. The court states that if complaints are filed under this legal provision, it would not just be harassment against the innocent husband and his relatives, it would also mean that reconciliation and reunion of the couple wouldn’t be possible if such a complaint is filed.

Albeit, few critics appear to be dissatisfied over the language of the Bench, yet one thing is crystal clear that the apex court has tried to strike a balance between the right of the victim and right of the accused.