Through the looking glass


Arjun Sayal

Lawmaker Manu’s oft-quoted statement, that women are not worthy of freedom, exhaustively underscores the Indian Paradigm that was sought to be negated by the legislature, when it set out to pass the Criminal Law (Second Amendment) Act No. 46 of 1983, introducing for the first time, to a nation seemingly never full of dowry deaths and cruelty to married women, Section 498A the debutante in a code which lacked the intrinsic aspect of protection to the hapless victim of marriage in a patriarchal society. The 20th century had been the Dark Age for women the world over, who had been subjected to different standards than men. They had been consistently oppressed in nearly all aspects of life, from political to personal, public to private. Women were always a weaker section of the society, which denied them basics such as education, nutrition and expression. Consequently, marriage too weighed against them; statistical testimonies being the number of dowry-related harassment and domestic violence cases that are on record from that era.

Section 498A of the IPC defined a new cognizable offence, namely, cruelty by husband or relatives of husband. It is directed against the husband and/or his relative, who is guilty of the offence of subjecting the wife of such husband to cruelty, and can be invoked by such wife, or daughter-in-law, or her relative, against the offenders. The term cruelty has been given a wide berth, a protectively, non-evasive connotation in the explanation to the section, and includes both forms physical as well as mental. The offence is non-bailable, non-compoundable and cognizable on a complaint made to the police officer by the victim or by designated relatives.

The legislatures bona fide attempt in re-asserting, through the passage of the aforesaid provision, a womans right to be treated with due care and respect, has been successful in its own right. It is only now that women are learning to use the laws put in place for their protection. This law has laid the foundation for the demand of a civil law to protect women and children. Domestic violence has since 1983 been recognised as a crime and also constitutes a considerable part of the workload of police, prosecutors and the courts.

However, 498A in leading the pack of Indian “women-protection laws”, and in assuming that wives are always honest victims of marital wrath, therefore requiring no proof of their claims before initiating action against the accused, quite unwittingly overlooks the possible emergence of a reverse trend in the aforesaid scenario. The victim turning into the abuser!

The section, today, has metamorphosized into a unilateral and indefeasible weapon in the hands of married women, which can be easily abused if intended. The scope and limitations of the section have not been defined and demarcated which makes the situation worse. Many instances have come to light where the complaints are not bona fide and have been filed with an oblique motive.

POLICE PROCEDURES: FIRST IN LINE FOR THE SCANNER!

No arrest can be made because it is lawful for the Police Officer to do so.[1]

Offences are divided into cognizable and non-cognizable. By law, the police are duty bound to register and investigate a cognizable offence. 498A is a cognizable offence. S.498A was intended, by the legislature, to be invoked by way of private complaint to the Judicial Magistrate First Class or the Metropolitan Magistrate, who will take cognizance of the complaint, if it is found to be up to his judicial satisfaction, and issue summons to the opposite party, directing them to apply for bail. Nowhere in this scheme, does a clause of unconditional arrest book a place. But evidently, the Police has pushed to the backward recesses of the systems memory, the fact that the existence of the power to arrest is one thing, while the justification for its exercise is quite another. The Police Officer must be able to justify the arrest apart from his power to do so. No arrest can be made without a reasonable satisfaction reached after some investigation as to the genuineness and bona fides of a complaint and a reasonable belief both as to the person’s complicity and even as so as to the need to effect arrest. A person is not liable to arrest merely on the suspicion of complicity in an offence.[2] It is not imperative that in each and every cognizable offence, the accused must be arrested merely because an F.I.R. has been lodged against him. The officer in charge, if comes to the conclusion that there is no sufficient ground for entering on an investigation, shall not proceed to investigate the allegations made in the report, and in such a situation, he shall inform accordingly to the informant.[3]

Thus even a special women-oriented law like the 498A itself, is untenable where statistics such as the one indicating arrest of 30,000 innocent women annually[4], based solely on the F.I.R lodged by a living tortured daughter-in-law or sister-in-law, are concerned. The law was not designed as ultra vires the constitution, and never was its true implementation intended to give way to any such defence of the section.

If any special treatment need be given to the said section, it shall touch upon the fact that S.498A unlike regular penal laws is a matrimonial law. Levying of other penal sections in addition to S.498A is a sure indicator of abuse of the process to cause arrest for ulterior motives. This additional levying causes a repetition of charges, because the said section is not entirely bereft of the elements of dowry demand. This is a clear abuse of police powers to arrest, by abetting the woman and her side to authoritatively implement her ulterior design to commit extortion in the garb of a prosecution for cruelty.

COMPOUNDING OF NON-COMPOUNDABLE OFFENCES

Based on whether a criminal complaint can be withdrawn, and investigations against the opposite party compromised to give effect to private settlement between parties to the complaint, offences under the penal code are divided into compoundable and non-compoundable offences. S.498A is a non-compoundable offence under the code. An offence under S.498A or any other offence under the Code which is not specifically enumerated in Section 320 of the Code cannot be compounded by the apex court in exercise of its powers under Section 320 and by High Court in exercise of its inherent powers under Section 482[5] of the Code.

However in a recent case of the Bombay High Court, it was added to this position of law, that, the inherent powers under Section 482 of the Code include powers to quash FIR, Investigation or any criminal proceedings pending before the High Court or any Courts subordinate to it and are of wide magnitude and ramification. Such powers can be exercised to secure ends of justice, prevent abuse of the process of any court and to make such orders as may be necessary to give effect to any order under this Code, depending upon the facts of a given case. These powers are neither limited nor curtailed by any other provisions of the Code including Section 320 of the Code. The Court could exercise this power in offences of any kind, whether compoundable or non-compoundable. However, such inherent powers are to be exercised sparingly and with caution. Further, the Court should ensure that object and purpose of passing any order in exercise of its inherent powers should be confined to one of the three categories stated in Section 482 of the Code.

This fresh observation may be supplemented with the legislatures intention to not apply ordinary judicial procedure to the sensitive area of personal relationships. Litigation concerning or involving affairs of the family, therefore, seems to require a special approach in view of the serious emotional aspects involved.[6]

A Division Bench of The Bombay High Court[7], relying upon the judgment of the Supreme Court in B.S. Joshi’s case[8] and expanding the principles of socio-welfare interpretation to the provisions of the Code, has thus ruled that the decision of the Supreme Court gives powers to the High Court to permit compounding of matrimonial offences and the High Court has powers to quash the criminal proceedings, FIR or complaint.

For the woman armed with skewed intentions though, and coupled with the executives inclination towards rampant abuse of police powers, as detailed under the preceding sub-heading, this newfound judicial activism serves as the perfect artillery to avenge and extort. Where the courts are allowing the withdrawal of the case when the parties agree to reconcile or settle case, in real terms it amounts to the fact that if you pay up, the case goes away, if you dont you will get stuck with a criminal case that will go on for years. Every year, close to 4,000 innocent senior citizens are arrested under IPC Section 498A. Many retired elders have been ill treated, thrown out of their own homes and deprived of their meager means of sustenance by greedy or vengeful daughters-in-law. A visit to the Crime Against Women Cell shall reveal hoards of Men and their relatives being tortured by the legal machinery at the behest of women.

Thus we are witnessing an era of misconstruction at its best, of the meaning and implication to be given to the compounding of this matrimonial offence.

NO-BAIL: A LOST BARGAIN

There are two kinds of offences, bailable and non-bailable. 498A is non bailable. This means that the magistrate has the power to refuse bail and remand a person to judicial or police custody. The process of anticipatory bail, arrest, regular bail, filing of charge sheet, if any, have to follow the registration of an FIR. Given the nature of matrimonial disputes, straightway registering an FIR, which triggers the criminal justice process, can place the parties in an inflexible position and thereafter less inclined to reconcile their differences. Here comes in the notorious Crime Against Women Cell (CAW Cell), which has been notified as a Police station. The complaint, at the stage at which it is referred to the CAW Cell by the police, has not been registered as an FIR.[9] The reference of the complaint to the CAW cell has increasingly gained recognition as supposedly having the effect of postponing the activation of the criminal justice process by facilitating dialogue between the parties with the help of the police. The Supreme Court has in some of its decisions recognized the practice of the police conducting a preliminary enquiry before registering an FIR.[10] Now the CAW cell is not bound to follow the statutory procedure for investigation as under the Criminal Procedure Code, since it is only a pre-enquiry stage. So the cell devises its own methods to identify the nature of offence, collection of evidence and examination of witnesses. Even vague, unspecific or exaggerated allegations bereft of any evidence of any physical or mental harm or injury inflicted upon the woman cater to the cells quest to hound the husbands with the threat of arrest making them run here and there and force them to hide at their friends or relatives houses till they get anticipatory bail. Thousands of such complaints and cases are pending and are being lodged day in and day out.[11] Read between the lines, this is the tyranny of corrupt CAW cells. Picture Jasbir Kaur Vs State[12] , where instead of making an effort to bring about amicable settlement between the parties, the cell blackmailed the husband with threats of registering immediately an FIR against him. Leading dailies have been documenting statistical evidence of the number of fake cases before such CAW cells, and yet we have figures such as over 100,000 women being arrested since 2004, u/s 498A!

Losing our reins over the mushrooming CAW cells is one aspect; the other is the sheer abandon of a citizens A.21 right under the constitution. When the basic criterion that whether there is any prima facie evidence to connect the accused with the crime is overlooked, and each time a bail plea is rejected even without giving opportunity of hearing to the defence counsel, it is a sheer violation of the basic principles of natural justice. The amended S.437(2), CrPC lends support to the contention that in deciding the question of grant of bail, the seriousness of the offence is of no consequence unless and until the nexus between the accused and the crime is highlighted by the prima facie evidence.

A RETURN-PATH TOWARDS LAW AND ORDER

The use of S.498A by reading in part or in isolation to each other, of the provisions of the Criminal (Amendment) Act No. 46 of 1983, is resulting in a stark deviance from the literal meaning of the section. Exigent is a reversion to the golden rule of interpretation here. 498A was never developed as a weapon of mass-destruction, but that is what it easily mirrors itself into, the moment the thin line between judicial activism and gross misconstruction of the provision is ignored. To save such ignominy of the well-intended provision, certain authoritative observations, such as the following, may be taken guidance of:

  1. The Apex Court[13] has set out in some detail, the categories of cases where the High Court may exercise its power[14] relating to cognisable offences to prevent abuse of process of any court or otherwise to secure the ends of justice. Significant among them are:
    1. Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused.
    2. Where a criminal proceeding is manifestly attended with mala fides and where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge.
  2. If for the purpose of securing the ends of justice, quashing of FIR becomes necessary, section 320 of Cr.P.C would not be a bar to the exercise of power of quashing. The court considering the special features of the matrimonial matters, has observed that it is the duty of the court to encourage general settlement of matrimonial disputes U/S 498-A by quashing the criminal proceedings under that section. Further, it would not be wrong to assume that the personality of the offender as revealed by his age, character, antecedents and other circumstances and the tractability of the offender to reform must necessarily play the most prominent role in determining the sentence to be awarded.[15]
  3. An attitude that has the potential to uncover great institutional damage is that justice is required to be done only in the courts. It should instead be taken to be that any and every authority under the statute has to discharge its duties in a just manner, otherwise people will lose faith in the governance. Public authorities should stringently desist from unnecessarily burdening courts by placing before it frivolous and fabricated cases.[16]
  4. Section 498A is intended to protect the women from cruelty of husband or his relatives. It has been widely reported that this provision has been misused and is also harsh as it is non-bailable and non-compoundable. It is desirable to provide a chance to the estranged spouse to come together and therefore it is proposed to make the offence under Section 498A IPC, a compoundable one by inserting this Section in the Table under sub section (2) of Section 320 of CrPC, wherein it can be compounded with permission of the Court.[17].However, as has been detailed above, the ordeal does not end at the withdrawal of petition. To treat this malady, an amendment to the effect of making the misuse of the law as a valid ground for divorce, is suggested. Furthermore, all marriages ending up with false dowry cases should not be allowed alimony and child custody.

A cardinal principal of the sentencing policy is that it is better to forgive ten suspected criminals than to punish one innocent person but today, the IPC 498A is powerfully working its way towards uprooting the very foundation of any such Rule of Law.

If Feminazism (Feminist-Nazism) is on the rise, willing to overturn every sane tenet upon which has been founded a groundbreaking woman-oriented law, then the golden rule and mischief rule of interpretation shall come together to bare face the law in its essence. The abuse of any such law should especially not happen in a society which is in the nascent stage of transforming ideologies, as it is the very antithesis of the notion of law itself and shakes to the core, the belief in the prevalence of a just social order.

(The author is a student of Amity Law School, New Delhi)


[1] Joginder Kumar Vs. State of U.P. 1994 INDLAW SC 1505

[2] Ratanlal and Dhirajlal, Code of Criminal Procedure (Mr. Justice Y.V. Chandrachud ed., Nagpur: Wadhwa and Company, 2004) (414): Where cognizable offence is committed, First information lodged under Section 154, CrPC, or any other reliable information which police agency believes to go in respect of commission, of offence gives rise to the police machinery to come into motion and proceed with the investigation.

[3] Dr. Vinod Narain V. State of U.P and Ors. 1996 CriLJ1309, elaborating on the meaning of “If necessary to take measure for discovery and arrest of the offender” in Section 157, CrPC

[5] Nothing in this Code shall be deemed to limit or affect the inherent powers of the High Court to make such orders as may be necessary to give effect to any order this Code, or to prevent abuse of the process of any court or otherwise to secure the ends of justice.

[6] Clause 83 of The ORDER XXXII-A OF THE CPC

[7] Kiran Tulshiram Ingale v. Smt. Anupama P. Gaikwad and Ors. 2006 Cri. L.J. 4591

[8] B.S. Joshi and Ors. v. State of Haryana and Anr. 2003 INDLAW SC 230

[9] In terms of Section 154 (1), CrPC

[10] P. Sirajudin v. State of Madras (1970) 1 SCC 597

[12] HC(Del)2006

[13] State of Haryana v. Bhajan Lal 1990 INDLAW SC 91

[14] S.482, CrPC

[15] B.S.Joshi v State of Haryana 2003 INDLAW SC 230

[16] Union of India V. Raja Mohammed Amir Mohammed Khan 2005 AIR (SCW) 5303

[17] The Law Commission, 154th report recommendations and the Malimath Committee Recommendations

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