Death Of 498a As We Know It

Death Of 498a As We Know It

Supreme Court has given another set of guidelines to stem the misuse of 498A (Husband or relative of husband of a woman subjecting her to cruelty: Proposed Section 84 of The Bharatiya Nyaya Sanhita, 2023). On first reading, I was ecstatic that such exhaustive guidelines were given by the Supreme Court to curb the misuse of 498A (Husband or relative of husband of a woman subjecting her to cruelty: Proposed Section 84 of The Bharatiya Nyaya Sanhita, 2023). But after careful perusal, there are still gaps that unscrupulous women can exploit.

Supreme Court yesterday in Rajesh Sharma & others Vs State of UP & Anr, gave exhaustive guidelines to curb the misuse of 498A (Husband or relative of husband of a woman subjecting her to cruelty: Proposed Section 84 of The Bharatiya Nyaya Sanhita, 2023).

So, what does this judgment say? What are the implications of the same for the new fighters? Here, it is a point-by-point exploitation.

1. In every district, one or more Family Welfare Committees are constituted by the District Legal Services Authorities, preferably comprising three members. The constitution and working of such committees may be reviewed from time to time and at least once a year by the District and Sessions Judge of the district, who is also the Chairman of the District Legal Services Authority.
2. The Committees may comprise paralegal volunteers, social workers, retired persons, wives of working officers, and other citizens who may be found suitable and willing.
3. The Committee members will not be called as witnesses.
4. Every complaint under Section 498A (Husband or relative of husband of a woman subjecting her to cruelty: Proposed Section 84 of The Bharatiya Nyaya Sanhita, 2023) received by the police or the Magistrate be referred to and looked into by such committee. Such committee may interact with the parties personally or by telephone or any other mode of communication, including electronic communication.
5. A report of such committee is given to the Authority by whom the complaint is referred to at the latest within one Month from receipt of the complaint.
6. The committee may give a brief report about the factual aspects and its opinion.
7. (g) Till the report of the committee is received, no arrest should usually be effected.
8. The Investigating Officer or the Magistrate may then consider the report on its merit.
9. Committee members may be given such basic minimum training as may be considered necessary by the Legal Services Authority from time to time.
10. The committee members may be given such honorarium as may be considered viable.
11. It will be open to the District and Sessions Judge to utilize the cost fund wherever necessary and proper.

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

1. Complaints under Section 498A(Husband or relative of husband of a woman subjecting her to cruelty: Proposed Section 84 of The Bharatiya Nyaya Sanhita, 2023) 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 least one week) as may be considered appropriate. The training may be completed within four months from today;
2. 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 the 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. When a settlement is reached, the same should be closed at the District and Sessions Court level, and it seems that going to HC/ SC for quashing of the complaint. 

1. 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 be grounds for denial of bail if maintenance or other rights of wife/minor children can otherwise be protected. In dealing with bail matters, individual roles, prima facie truth of the allegations, the requirement of further arrest/ custody and interest of justice must be carefully weighed;

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

1. In respect of persons ordinarily residing out of India, impounding of passports or issuance of Red Corner Notice should not be a routine;
2. 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. Personal appearance of all family members and particularly outstation members may not be required, and the trial court ought to grant exemption from the personal appearance or permit appearance by video conferencing without adversely affecting the trial’s progress.

This is the most significant relief that would come out of this judgment. NRIs and People who travel a long distance and fight multiple litigations in courts would benefit from this judgment. The mandate is to club all cases, whether they happen or not, and also to grant an exemption to NRIs and People who must travel long distances to attend court cases. 

1. These directions will not apply to 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 the law would take its course.

 

Since the time this article was published, there has been a marked change in the guidelines issued by the Apex Court regarding the procedure to be followed in 498A IPC (Husband or relative of husband of a woman subjecting her to cruelty: Proposed Section 84 of The Bharatiya Nyaya Sanhita, 2023) complaints. You can view my article on The New Phase of 498A to learn the current guidelines.