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.
- 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.
- 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.
- 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.
- v) In respect of persons ordinarily residing out of India impounding of passports or issuance of Red Corner Notice should not be a routine;
- 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
- 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.
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