Section 498A was inserted in the year 1983 in the Indian Penal Code of 1860 to stem the tides of dowry deaths. It aimed at punishing cruelty at the hands of the husband or his relatives against the wife, particularly when such cruelty had the potential to result in suicide or murder of a woman as mentioned in the statement of Objects and Reasons of the Act 46 of 1983. Section defining ‘cruelty’ covers conduct which may drive women to commit suicide or cause grave injury (mental/physical) or danger to life or harassment with a view to coerce her to meet unlawful demands of dowry.
Making law against dowry deaths and torture robust, the legislature decided to make the offence under section 498 A non- bailable and non- compoundable so that the police or magistrate on receipt of a complaint may immediately arrest the accused husband and his relatives who have allegedly participated in commission of crime. Despite such rigorous provision large number of cases (1,22,877) continue to be registered as per crime in India 2014. No doubt it is being increasingly believed by a large section of the society that a significant number of these complaints are frivolous or out of desire to take revenge and this amounts to serious abuse of law. It is argued that tendency is growing to abuse the said provision to rope in all the relatives including parents of advanced age, minor children, grandparents on strength of vague, trivial and exaggerated allegations without any verifiable evidence of physical or mental harm or injury.
National Crime Records Bureau was used by the critics to indicate that the legal provision is being consistently misused by women, which records that “out of 4,66,079 cases that were pending in the start of 2013, only 7,258 were convicted while 38,165 were acquitted and 8,218 were withdrawn. The conviction rate of cases registered at a staggering low of 15.6% is also a strong pointer to the fact that provisions of 498A are being increasingly abused and law needs extensive revision.
The judiciary taking note and convinced of complaints about misuse of Section 498A in hands of women has called for a more sensitive approach towards its implementation. Not repeating many decisions in this regard, it is sufficient to consider Apex Court decision of 2014 in the case of Arnesh Kumar v. State of Bihar, whereby the Court directed all the State Governments to instruct its police officers not to automatically arrest in cases registered under section 498A but to satisfy themselves about the necessity for arrest under the parameters that flow from the provisions of section 41 of Criminal Procedure Code, 1973. It further stated- it would be prudent and wise for the police officer not to arrest in a routine manner on a mere allegation and without reasonable satisfaction reached after some investigation as to the genuineness of the allegations. The Court further said- A person accused of an offence punishable with imprisonment for a term which may be less than seven years or which may extend to seven years with or without fine, cannot be arrested by the police officer only on his satisfaction that such person has committed the offence punishable aforesaid. Before arrest, first, police officer should have reason to believe on basis of information and materials that the accused has committed the offence. The Court went ahead and said that apart from above the police officer has to be satisfied further that the arrest is necessary for one or more purposes envisaged in section 41 sub clauses (a) to (e) of Criminal Procedure Code (the section includes certain provision like, police officer has to be satisfied that such arrest is necessary for the investigation of the case; or to prevent the accused from causing the evidence of offence to disappear; to prevent such person from making any inducement, threat or promise to witness so as to dissuade disclosing relevant facts to court or the police and so on). Thus, the bottom line being that no arrest can be made without reasonable application of mind by the police officer. If taken seriously the decision and guidelines enunciated in Arnesh Kumar could be an effective way to keep a check on misuse of provisions of Section 498A
However, more recently on 27th July 2017 in the case of Rajesh Sharma & Ors. v. State of UP and Anr. while dealing with the issue of misuse of section 498A the Court expressed anguish that despite the directives and guidelines issued in Arnesh Kumar the problem continues and made further suggestion ‘‘to remedy the situation, we are of the view that involvement of the civil society in aid of administration of justice can be one of the steps apart from investing officers and concerned trials being sensitized.”
The Court has further ordered in the instant case, all States to set up three-member family welfare committees in all districts under the National Legal Services Authority. Members can be appointed from para legal volunteers/social workers/retired persons/wives of working officers/other citizens. Family welfare committee at district level will be the first for any woman who wishes to file a criminal complaint under section 498A. the committee will enquire into the complaint and file a report with the police officer or Magistrate concerned within a month. The committee can directly get in touch with the parties involved but the members will not be called as witnesses in case there is a trial. Till report of the committee is received, no arrest should normally be effected.
The Court in our assessment adopted an approach that instead of being progressive was regressive towards protecting the interest of women who come forward to file a genuine complaint against torture meted to them by the accused husband and relatives. The regressive effect of Rajesh Sharma becomes so evident in certain aspects.
Firstly, in formulating apparent above solution, the Court introduced an element of bureaucratisation of law under section 498A and section 41 Criminal Procedure Code which may delay the process of initiation of the trial at least by one month and in many instances, it could be more as who of us is not aware of the kinds of techniques which could be invented by the so called smart husbands to cause delays. Further even if the committee finishes its task on time there are potential possibilities that during interim period of one month since the woman filed the complaint and that she is living with the accused and family so what is the guarantee that during that period she would not be subjected to further and worst dose of torture- physical and psychological. Further, what is the guarantee that all kinds of pressure from different sides or inducements and fake promises will not be made to influence or force her to withdraw her complaint.
Another negative impact of the verdict is the induction of an element of bureaucratization in the operation of section 498A. Apart from its adding financial aspects as the members are to be paid salary. More significantly the remedy suggested in terms of the constitution of the committee it allows space for bias, prejudices and subjectivity of members of committee during the investigations and especially while determining the veracity of the contents of complaint. When we are fully aware of the stronghold presence of patriarchal values in every strata and section of society to expect that members of the committee will remain completely immune from community pressures or other allurements including chances of getting corrupted in various ways sound impractical.
We hope at the end of six months when the functioning of the district committee is reviewed, either the idea would be abandoned or alternate ways would be devised addressing some of the questions we have raised above. It seems that the real challenge in providing justice to women victims of violence is not just deficiencies in the law but a broken criminal justice system. Whether its rape or dowry, women who turn to police are repeatedly let down. From poor investigation into the crime to unconvincing arguments by the prosecution and the Courts especially in case of dowry deaths or torture, the chances of establishing guilt is almost an insurmountable challenge in majority of cases.
This is the major reason why the conviction rate under section 498A is so poor and not due to filing of frivolous complaints. Unfortunately, when women complainants give up their cases its largely due to reasons mentioned above and are instead charged with filing false cases under section 498A or compelled to compromise in the interest of ‘saving the family’.
Experimenting the idea of civil society suggested in Rajesh Sharma case may lead to dilution and reterogation instead implementing the guide- lines laid down in Arnesh Kumar’s case, if taken seriously, may keep a check on abuse of 498A.