By Nihit Nagpal and Devika Mehra
Under Chapter XX-A, Section 498A of Indian Penal Code, any kind of violence or extortion against a woman by her husband or his relatives, is considered as “cruelty” towards her. It is a criminal offence, with the imprisonment of term not more than 3 years and may also with a fine along with the punishment. The offence under this section is cognizable and non-bailable and therefore, it has been often misused by the wives against their husbands and in-laws.
Recently, the Allahabad High Court in the criminal revision of 20221 of Mukesh Bansal v. State of UP & Anrs2 reiterated the precedent of the Hon’ble Supreme Court and directed to constitute Family Welfare Committees (FWC) in pursuant to the complaints under Section 498A, so as to ensure that the innocents are not exploited at the hands of the provisions which has been enacted with the purpose to provide security to the victims of domestic violence and to avoid the violation of the judgements pronounced by the apex court, as it would lose its ultimate purpose and the legislative intent.
In the present case, a wife had lodged the FIR against her husband and in-laws alleging that her father-in-law and brother –in law were trying to seek sexual favours from her. Her husband used to lock her in bathroom, taking away her mobile phone. She has also alleged that her mother and sister-in law pressurized her to get aborted and constantly demanded for additional dowry and assaulted her for the same. The court found the FIR to be abhorring and justified the lower court’s decision of releasing the accused as the victim was unable to substantiate her allegation. Consequently, the revision petitions were filed by her in-laws in the High Court.
To adjudicate the current matter, the Allahabad High Court took the guidance from the pronouncement of the Apex Court in Social Action Forum for Manav Adhikar v. Union of India3 . There are several instances wherein the apex court has dealt with the matter of establishment of FWC to avoid such misuse of the law.
For instance, initially, in Rajesh Sharma case4 , the apex court issued the following guidelines to prevent the misuse of the Section 498A and for the constitution of FWC:
– Police officer should not arrest the accused immediately after the application u/Section.498 has been filed. The validity of such arrest must be established as per the parameters of Section 41 of CrPC.
– The magistrate shall authorize the arrest only after the submission of satisfaction report by the Police Officers.
– The police officers shall fill the checklist including clauses u/Section 41 (1) (b) (ii), CrPC as well as mention the grounds for the evidence of such arrest.
– In case the Police officer fails to comply with the directions, he shall be held liable for departmental action and shall be punished for the offence of the contempt of court.
– In case the Judicial Magistrate fails to comply with the guidelines, he shall be held liable for the departmental action by the respective High Court of the State.
However, the above guidelines were further amended in the Arnesh Kumar case5 as follows:
– Complaints filed under Section 498 A or other related offence may only be examined by a designated investigator.
– In case the settlement between the parties has been reached, they can approach the High Court to seek the dismissal of the proceedings.
– In case a bail application/complaint with at least one day notice has been filed, it shall be decided on the same day if possible.
– Recovery of disputed item may not itself be a ground for the dismissal of bail if it is possible to protect the maintenance or the rights of women or a minor, otherwise.
In Social Action Forum for Manav Adhikar v. Union of India6 , a three-judge bench led by the former CJI Justice Dipak Mishra withdrew the instructions established thereunder, in regards to the establishment and powers of the FWC.
The Hon’ble Court held that the instruction issued earlier by the two-judge Bench are not in accordance with the provisions of CrPC. The provided instructions make it impossible to arrest the accused before the Committee’s report is produced, thus compromising the nature of the offence and making it accountable. The role of FWC was declared to be inadmissible and the establishment route was revised and stated that the parties may approach the High Court under Section 482, in case the settlement has reached, as mentioned above.
Allahabad High Court Issues directions signifying the importance of FWC
Referring to the Social Action Forum for Manav Adhikar v. Union of India7 , the Allahabad HC in Mukesh Bansal v. State of U.P issued the following guidelines for the establishment of FWC to avoid the exploitation of husbands and their relatives under a false accusation:
1. No arrest or police action shall be made immediately after the FIR or complaint has been lodged, without the conclusion of ‘Cooling Period’. The cooling period shall be of two month from the date of FIR or the complaint. The matter should be immediately referred to FWC during the same.
2. Cases which consist no injury as per Section 307 and other related offences under IPC and for which the punishment is imprisonment of within 10 years and are under Section 498 A, shall only be transmitted to FWC.
3. Every district shall have at least one FWC, depending upon the geographical and population size of the same. It shall comprise of at least 3 members and its constitution shall be periodically reviewed by the District and Session judge/ Principle Judge, Family Court who shall be the chairperson or the co-chairperson of District Legal Service Authority.
4. The FWC shall comprise of following members:
a. A young mediator from District Mediation Centre or young advocate with a practice up to five years or a fifth year law student from a Government law college or State university or NLUs with a good academic record.
b. Recognized social worker of the respective district having clean antecedent.
c. Retired judicial officers residing in or nearby district who are willing to devote their time for the object of the proceedings
d. Educated wives of the senior judicial or administrative officers of the district.
5. The members of FWC shall not be called upon as a witness in the court.
6. Upon receiving the complaint, the FWC shall call the parties to the case along with their four elders to have a personal interaction, in order to solve and settle down the issues between them. The parties are obligated to appear before the committee.
7. After having proper deliberations, the Committee shall prepare a detailed report and send the same to the respective Magistrate after the expiration of the two months.
8. During the continuation period of the deliberations, the Police officers shall not arrest the accused or take any coercive action against the accused. However, the investigating officer may continue his peripheral investigation for the preparation of medical report, injury report, statement of witnesses etc.
9. The Report submitted by the Committee shall be done under the consideration of investigation officer or the Magistrate on its own merit. Thereafter, suitable actions shall be taken in consonance with the provisions of CrPC, once the cooling period is completed.
10. Training shall be provided to the members of the FWC by the Legal Service Aid Committee, which shall not be more than 26 weeks.
11. Since the work is for the welfare of the public at large, the members shall act on a pro bono basis or basic minimum honorarium as decided by the District and Sessions Judge.
12. The investigation shall be conducted by a designated investigation officer whose integrity is assured after a specialised training not less than one week of investigating such matrimonial cases with extreme sincerity and transparency.
13. In case the settlement is reached between the parties to the case, District and Sessions Judge or any other judicial officer nominated by him owns the power to dispose of the proceedings including the close of criminal case.
In the present case, though the Allahabad HC has taken guidance from the pronouncements of the Supreme Court over the misuse of the Section 498A of IPC, the considerations are contradictory to the instructions of the Apex court which has been made impermissible in the case of Social Action Forum for Manav Adhikar v. Union of India due to their conflicting nature with the provisions of CrPC. It violates the objective of Section 498A of being a cognizable and non-bailable offence. Therefore, even though the guidelines issued by the Allahabad HC was for public welfare, a new petition seeking further clarifications from the apex court can be expected.
1 Mukesh Bansal v. State of UP & Anr, Criminal revision no. 1126 of 2022; Manju Bansal v. State of UP & Anr, Criminal revision no 1187 of 2022; Sahib Bansal v. State of UP & Another, Criminal Revision no 1123 of 2022
2 Mukesh Bansal v. State of UP & Anr, Criminal revision no. 1126 of 2022
3 Social Action Forum for Manav Adhikar v. UOI, (2018) 10 SCC 443
4 Rajesh Sharma v. State of U.P.,Criminal Appeal No. 1265 of 2017
5 Arnesh Kumar v. State of Bihar, Criminal Appeal No. 1277 of 2014
6 Social Action Forum for Manav Adhikar v. Union of India 2018 (10) SCC 443