Section 498A is a double-edged sword. The law was created to combat the menace of harassment of women at the hands of their husband and his relatives. However, the law may also be used as a weapon by disgruntled wives to harass their husband and his relatives. The original legislative intent was to protect women from physical, emotional, and mental domestic abuse without disturbing the delicate social fabric of institutions such as marriage and family. However, the present application of the statute and its adjudication has serious problems. There have been instances where complaints were filed under Section 498-A to satisfy oblique motives and drag all the relatives of the husband to the police station and court. This article attempts to answer three questions. First, whether the courts adjudicate upon the cases under Section 498A from the single lens of physical harassment? Second, whether the misuse of Section 498A by disgruntled wives is a clarion call for the judiciary to issue a set of uniform guidelines to curb the menace? Third, can the involvement of civil society in the aid and administration of justice lead to better adjudication of cases of cruelty?
Are courts adjudicating upon the complaints under Section 498A from the single lens of physical harassment?
The definition of cruelty entails any grave injury to the life, limb or health of the woman, whether physical or mental. Mental cruelty is a state of mind wherein the disruptive behavioural patterns of the other spouse cause suffering or fear to the matrimonial life of the victim. However, courts have often not concentrated on mental cruelty to women and have only judged cruelty from the singular lens of physical harassment. This has led the courts to brand women on many occasions as hyper-sensitive or low on tolerance level. For example, complaints regarding willful treatment that has created fear in the minds of the victim or has made continued living of the spouses stressful have not been accepted by the court as instances of cruelty. It has been established in a number of cases that mental cruelty can cause even more serious injury than physical harm, as it creates apprehension in the mind of the victim. Furthermore, the concept of mental cruelty is bound to change, particularly with the growing impact of modern culture through print and electronic media.
Is the misuse of Section 498A a clarion call to issue a uniform set of guidelines?
In Chander Bhan v. State, the Delhi High Court issued certain guidelines to be followed by the police authorities while filing a charge sheet for arrest under Section 498A. Although such guidelines may ensure that the police officer registers the FIR only after careful scrutiny and investigation, it places a heavy burden on the police machinery to singularly separate those cases wherein there is a strong allegation of causing any kind of physical and mental cruelty from those wherein the husband and his relatives are being dragged to the police station only to satisfy personal scores.
The guidelines issued by the Supreme Court in the case of Arnesh Kumar v. State of Bihar (hereinafter, “Arnesh Kumar case”) may help increase transparency in the role of the police. Arnesh Kumar case opined the “satisfactory test” pursuant to which the Magistrate can authorize the detention of the accused. This may be done only if first, he has recorded the satisfaction of the report furnished by the police officer and second, a notice of appearance in terms of Section 41 of the Code of Civil Procedure has been served to the accused within two weeks from the date of institution. Furthermore, in order to increase transparency and hold the complainant liable for the alleged complaints, it made it mandatory to specify the role of each accused in the complaint and to affix an affidavit along with the complaint. The mandatory requirement of an affidavit is a transparent initiative as the complainant is now bound by oath to state the truth and fabrication of false evidence will account for liability pursuant to Section 193 of the Indian Penal Code. It also directed the report of the preliminary inquiry to be distributed to the accused for clear communication of the complaint. The guidelines also disabled the court from arresting the relatives of the husband above the age of seventy and made the offence compoundable and bailable. This has been contended in the case of Sushil Kumar Sharma v. Union of India wherein it was held that the mere possibility of misuse of a provision only necessitates provision of remedial measures and it cannot interfere with the legislative intent. This has been further upheld in the case of Social Action Forum for Manav Adhikar v. Union of India (hereinafter, “Social Action Forum” case) wherein it was held that the abuse of the provision is mainly by well-educated women who know the offence to be cognizable and non-bailable and altering the nature of the offence would curtail the rights of the women who were actually harassed.
In the case of Rajesh Sharma v. State of Uttar Pradesh, the constitution of family welfare committees under the District Legal Services Authority in every district was suggested. However, the same was contended in the Social Forum Case, wherein the court saw the guidelines as an off shoot of judicial activism and considered them to prima facia be in the legislative sphere.
Involvement of civil society in the aid and administration of justice.
The term civil society is an umbrella term that can cover diverse entities such as nongovernmental organizations, student bodies, trade unions, and public-spirited citizens to name a few. The involvement of civil society in the aid and administration of justice can expedite the identification and resolution of cases under Section 498A, especially those that have a predominantly civil flavour. The recommendation of the constitution of Family Welfare Committees in every district by the District Legal Services Authority consisting of para-legal volunteers, social workers or any other public-spirited citizen can improve the process of investigation in cases under Section 498A. In the Social Action Forum case, the court further elaborated on this suggestion by allowing young-spirited students with good academic records from government law colleges or National Law Universities to become members of family welfare committees. The case also stated that no arrest or coercive action can be taken against the husband or his relatives without exhausting the “Cooling-Off” period of two months after the FIR has been lodged or case filed. This has been again emphasized upon in the case of Mukesh Bansal v. State of Uttar Pradesh. This period of two months can give the committee the opportunity to pursue a thorough investigation and have personal interactions with parties. Facilitation of dialogue between the members of the committee and the parties involved can help crystalize the issues involved and may even lead to settlement through alternate mechanisms of dispute resolution such as mediation.
It is suggested that the constitution of Family Welfare Committees in every district by the District Legal Services Authority consisting of para legal volunteers, social workers or any other public-spirited citizen particularly allowing students with good academic background from Law colleges across the country is a step in the right direction. The division in the judicial opinion is a barrier in the smooth adjudication of cruelty cases. It is imperative for the courts to strike a balance between the apparent possibility of misuse and actual misuse of Section 498A and establish uniform guidelines. Issuing of uniform guidelines ensures that the machinery of police follows the “investigate first and then arrest doctrine” and does not arrest arbitrarily. Inconsistency in the guidelines can harm the initial process of investigation and arrest which is a crucial step in the ultimate adjudication of cruelty cases.
Ayushi Sareen is a second year law student, pursuing B.A. -LL.B at National Law University, Jodhpur
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