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DEATH OF 498A AS WE KNOW IT

DEATH OF 498A AS WE KNOW IT

Yesterday, Supreme Court gave another set of guidelines to stem the misuse of 498A. On first reading, I was ecstatic that such exhaustive guidelines are given by Supreme Court to curb the misuse of 498A. But after careful perusal of the same, I think there are still gaps which can be exploited by the unscrupulous women.

Supreme Court yesterday in Rajesh Sharma & othrs Vs State of UP & Anr,  gave exhaustive guidelines to curb the misuse of 498A.

So what does this judgment say actually, what are the implications of the same for the new fighters, here it is a point by point exploitation.

  1. i) (a) In every district one or more Family Welfare Committees be constituted by the District Legal Services Authorities preferably comprising of three members. The constitution and working of such committees may be reviewed from time to time and at least once in a year by the District and Sessions Judge of the district who is also the Chairman of the District Legal Services Authority.

(b) The Committees may be constituted out of para legal volunteers/social workers/retired persons/wives of working officers/other citizens who may be found suitable and willing.

(c) The Committee members will not be called as witnesses.

(d) Every complaint under Section 498A received by the police or the Magistrate be referred to and looked into by such committee. Such committee may have interaction with the parties personally or by means of telephone or any other mode of communication including electronic communication.

(e) Report of such committee be given to the Authority by whom the complaint is referred to it latest within one month from the date of receipt of complaint.

(f) The committee may give its brief report about the factual aspects and its opinion in the matter.

(g) Till report of the committee is received, no arrest should normally be effected.

(h) The report may be then considered by the Investigating Officer or the Magistrate on its own merit.

(i) Members of the committee may be given such basic minimum training as may be considered necessary by the Legal Services Authority from time to time.

(j) The Members of the committee may be given such honorarium as may be considered viable.

(k) It will be open to the District and Sessions Judge to utilize the cost fund wherever considered necessary and proper.

 

Basically this means that the Supreme Court has said that a committee of Three members would be formed in all districts. All complaints filed to Police and Magistrate would be referred to such committee and the committee within One Month from the date of complaint. And till the report from the committee is received arrest should not be made. However, it seems that the report of the committee is not binding on the police or the magistrate.

  1. ii) Complaints under Section 498A and other connected offences may be investigated only by a designated Investigating Officer of the area. Such designations may be made within one month from today. Such designated officer may be required to undergo training for such duration (not less than one week) as may be considered appropriate. The training may be completed within four months from today;

          iii) In cases where a settlement is reached, it will be open to the District and Sessions Judge or any other senior Judicial Officer nominated by him in the district to dispose of the proceedings including closing of the criminal case if dispute primarily relates to matrimonial discord;

It also makes it incumbent on the government to designate trained investigative officers and when settlement is reached, the same should be closed at the level of District and Sessions Court itself and it seems that going to HC/ SC for quashing of the complaint.

  1. iv) If a bail application is filed with at least one clear day’s notice to the Public Prosecutor/ complainant, the same may be decided as far as possible on the same day. Recovery of disputed dowry items may not by itself be a ground for denial of bail if maintenance or other rights of wife/minor children can otherwise be protected. Needless to say that in dealing with bail matters, individual roles, prima facie truth of the allegations, requirement of further arrest/ custody and interest of justice must be carefully weighed;

The judgment does not bar any arrest in 498A but it creates a confusion in bail. Can the court granting bail order for maintenance for wife/ minor children? If this happens, this would be the biggest detriment in curbing misuse of 498A.

  1. v) In respect of persons ordinarily residing out of India impounding of passports or issuance of Red Corner Notice should not be a routine;
  2. vi) It will be open to the District Judge or a designated senior judicial officer nominated by the District Judge to club all connected cases between the parties arising out of matrimonial disputes so that a holistic view is taken by the Court to whom all such cases are entrusted; and
  3. vii) Personal appearance of all family members and particularly outstation members may not be required and the trial court ought to grant exemption from personal appearance or permit appearance by video conferencing without adversely affecting progress of the trial.

This is the biggest relief that would come out of this judgment. NRIs and People who have to travel long distance and fight multiple litigation in courts would benefit out of this judgment. The mandate is to club all cases, whether it happens or not, and also to grant exemption to NRIs and People who have to travel long distances to attend to the court cases.

viii) These directions will not apply to the offences involving tangible physical injuries or death.

And this is the saving clause, in the event of grave physical injury or the death of the lady, these directions are infructuous and law would take its own course.

 

You may be interested in reading Landmark 498A Judgments by clicking HERE

If you have any query related to gender biased laws join SahodarWhatsapp Groups by sending Whatsapp message “Subscribe” to Sahodar Trust No. 9811850498

23 Comments

  1. Manish September 16, 2017 Reply

    My 498a is in Wardha district of Maharashtra and divorce case which is filed by me is in Nagpur , can these two cases clubbed?

    • Author
      Shonee Kapoor September 19, 2017 Reply

      No

  2. Nithya August 6, 2017 Reply

    I was left in parents house by in-laws last nov and not allowed into their house citing I follow christianity.I lived with husband in sydney after marriage for 31/2 yrs.I am prof qualified but have never worked.My husband cancelled my spouse visa before coming here.I wasn’t given even my marriage jewels back for maintaining myself and was asked to look for job.I haven’t secured a job yet and have literally sold the only gold chain I had.My husband went underground for long and I had to file missing complaint to find him hiding in his relative’s house.He hasn’t gone for job for a year.I had given complaint for returning jewels and for harassing to get money from parents since they only take care of me now.Now my husband and in-laws have taken an AB & have falsely said that I was working in AUS & have changed our previous residence place from Sydney to Melbourne.And that I seperated from him on my will when clearly there is evidence of my in-laws not allowing me into their house after bringing us here.I tried counselling with husband in Sydney and it worked out well but husband stopped coming at one point.Now police cant arrest inlaws becos they are over 70.But how can one go without punishment for falsely blaming and destroying marriage,forcing the victim to go to police for justice and then ask for protection ???

    • Author
      Shonee Kapoor August 9, 2017 Reply

      Section 498A is surely not the answer. Law has enough remedies for you.

  3. Subhash Dua July 31, 2017 Reply

    How will the issue of maintenance be decided at the time of bail?
    Does it not factually means that maintenance will be pronounced at the time of bail?

    • Author
      Shonee Kapoor August 9, 2017 Reply

      Yes, and that is what I have pointed out in my above article.

  4. ankit chhabra July 29, 2017 Reply

    My case is in womencell right now no fir lodge till now please tell me after this changes what will happen police lodge FIR or something else.
    Please reply

    • Author
      Shonee Kapoor August 9, 2017 Reply

      You can request your case to be transferred to Family Welfare Council.

  5. Anshul July 29, 2017 Reply

    Can this judgement be used to club domestic violence (civil case) and 498a/406/354a (criminal case) arising out of same matrimonial dispute? (Both cases have same complaint writing)

    • Author
      Shonee Kapoor August 9, 2017 Reply

      Hopefully Yes. Try for the same

  6. Debasheesh Maitra July 29, 2017 Reply

    Sir, my 498a has been dragged for 10 long years in which only one witness has been crossed. My son as fresh witness under 311 was included 1 year back, who could not be crossed till date due to one or other flimsy grounds. Will there be any positive impact of SC judgement on it?

    • Author
      Shonee Kapoor August 9, 2017 Reply

      You should have gone for speedy trial long back. Try now.

  7. Gulshan Sehgal July 29, 2017 Reply

    This will provide autocracy to men Dowery deaths will increase. As woman out of hundred only one or two dare to come forward

    • shazeel basha July 29, 2017 Reply

      I guess you do not have any cases on you.

  8. Surya T. July 29, 2017 Reply

    What will happen to caw cell proceedings now? Will they continue in Delhi because lots of money is spent on those cells..

    • Author
      Shonee Kapoor July 29, 2017 Reply

      Ideally it should go to FWC now. There is no point continuing two parallal proceedings

  9. Daljeet Singh July 29, 2017 Reply

    Sir, I have one case under HAMA Section 18(1) at Family Court Pune and another under DV Act 2005 Section 12,18,19,20 & 23 at JMFC Pune cantonment court. Can the both cases be clubbed as one in one court?
    Thanks

    • Author
      Shonee Kapoor July 29, 2017 Reply

      As per mandate of this judgement, they should be clubbed

  10. Anshul July 28, 2017 Reply

    What will happen to cases which are currently in Police station and no arrest notice or chargesheet has been filed. Are these cases bound by new guidelines and now they will have to go through family welfare committee.

    • Author
      Shonee Kapoor July 28, 2017 Reply

      They ought to be.

  11. Rajesh Gondi July 28, 2017 Reply

    Its a nice judgement and would begin an era where courts are giving importance to men as well.

    Although police/system and undoubtedly judges are big feminist and are so biased in their judgements and corrupt at the same time that they will again find a way to misuse this newly formed committee as well.

    So this will lighten the effect of 498a to some extend and may cause little more delay in FIR and arrest like the present system of mediation/lok adalats etc.

    Rajesh G

  12. Amit July 28, 2017 Reply

    What will happen to the pending chargesheet ?

    • Author
      Shonee Kapoor July 28, 2017 Reply

      It would run its own course

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