Live Law Family Matters: 2017

Wednesday, December 20, 2017

Cannot Be Exempted From Maintaining Child Even If Other Spouse Earns Sufficiently Well: Delhi HC

_*⭐Cannot Be Exempted From Maintaining Child Even If Other Spouse Earns Sufficiently Well: Delhi HC [Read Judgment].*_
http://www.livelaw.in/cannot-exempted-maintaining-child-even-spouse-earns-sufficiently-well-delhi-hc-read-judgment/

Whether proceeding under domestic violence Act can be conducted by brother of aggrieved woman?

Under Section 12 of the D.V. Act, an aggrieved person or a
Protection Officer or any other person on behalf of the aggrieved person has
been given a right to file an application to the Magistrate seeking various
reliefs permissible under the Act. The conditions necessary for preferring
such an application are that the application must be filed by an aggrieved
person or any other person on behalf of the aggrieved person and that the
aggrieved person must be a woman, who is or who has been in domestic
relationship with the respondent and who is subjected to any act of domestic
violence by the respondent. In the present case, the application has been filed
on behalf of the respondent by her brother. The reason being that, at the
time of filing of the application, the respondent was doing her fellowship in
medicine at Bangalore. The brother of an aggrieved person would certainly
fall within the meaning of the expression “any other person on behalf of the
aggrieved person”, used in Section 12 of the D.V. Act.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
CRIMINAL WRIT PETITION NO.656 OF 2015
Dr. Akshay s/o Navalkishor Lakhotiya,
Vs Dr. Arti w/o Akshay Lakhotiya,CORAM : S. B. SHUKRE, J.
Dated : 15th DECEMBER, 2016.
Citation: 2017(2) MHLJ 235 Bombay. http://www.advok8.in/Consult/ConsultAll.aspx

If a husband submits himself for an operation of sterilization without medical reasons and without the consent or knowledge of his wife and, similarly, if the wife undergoes vasectomy or abortion without medical reason or without the consent or knowledge of her husband, such an act of the spouse may lead to mental cruelty.

If a husband submits himself for an operation of sterilization without medical reasons and without the consent or knowledge of his wife and, similarly, if the wife undergoes vasectomy or abortion without medical reason or without the consent or knowledge of her husband, such an act of the spouse may lead to mental cruelty.

Unilateral decision of refusal to have intercourse for considerable period without there being any physical incapacity or valid reason may amount to mental cruelty.

Unilateral decision of either husband or wife after marriage not to have child from the marriage may amount to cruelty.

Thursday, October 26, 2017

How to claim 50% of husband’s property after divorce?

Are you thinking about a divorce? Do you have any knowledge about the divorce process and alimony that you will get? This article will give you an idea about the divorce procedures and the alimony that you have rights to claim and this article will help the individuals to navigate the process as smoothly as possible. You are at a right place for an overview of the divorce process.You will get an idea about where to file for divorce, serving and answering a divorce petition, divorce records and related privacy issues, divorce mediation, and more.

The Indian government proposed some changes in marriage laws. The cabinet passed a bill called “Marriage Law’s (Amendment) Bill 2010”, which is waiting for approval and some major changes are made regarding how the properties would be divided after divorce.

50% share for wife on husband’s properties

Before this bill, a woman had rights in husband’s properties, but there were no legal statements about this, it would be any percentage depending on the case, but after this change, a woman can claim equal sharing without any condition in husband’s property.

According to the earlier law, the wife gets share only in those properties which are acquired by husband after marriage, whereas according to new change the wife has rights on all properties which are acquired by the husband before and after marriage. The new divorce law saying that the share of wife in husband’s property would be 50%, no matter how much property she owns in other, her share will be decided by the court.

Share on joint holder’s residential property

Normally the residential properties will be a joint property. Both the husband and wife are pay’s from their respective salaries, and some cases only husband Pays. Suppose the couple got divorce – women will get 50% of all properties and she has the right to get half of her husband share in the house. As per The Hindu Marriage Act 1955, it states a settlement of property jointly owned by both parties which they were presented to them at the time of marriage.

Apart from husband’s 50% share, the wife has also rights on other properties. But the legal statements about these rights are to be set. As per the bill now, this right depends on “living standard of the wife”. If the wives have no source of income, then according to Section 125 of the Criminal Procedure Code provides for monthly maintenance to wives.

A lot of people are saying that this bill is totally against males and illogical. They have termed this new divorce law as anti-marriage and anti-male law. The new law of divorce only talks about the division of the husband’s property but not wife’s property. So women will get 50% share in husband’s property even women is at fault.

As per old divorce law, the cooling period of 6 months was compulsory before the divorce. But in new law, the couple can waive off the 6 months cool off period or lessen it if they want so.

The serious drawback of this law is, if some men are going through a bad phase of marriage, then they have to transfer their properties into another person’s name to avoid the 50% share.

The wife needs to take the initiative to claim the share and woman will get 50% share of the properties. Women and children have the rights on 50% properties of man and it will be decided by the court. Wives have rights on all properties of man, no matter if the property was acquired by before or after the marriage.https://play.google.com/store/apps/details?id=com.advok8

Wednesday, October 25, 2017

HUSBANDS ILLICIT RELATIONSHIP WITH ANOTHER WOMAN MAY NOT AMOUNT TO CRUELTY

The Supreme Court has ruled that a husband's illicit relationship with another woman may not amount to 'cruelty' towards his wife and count as a ground for abetment to her suicide.

The case from Gujarat has striking facts. The husband and wife had a strained relationship and were contemplating divorce. The wife was resigned to her fate and had told her sister that she was facing breakdown of marriage. She had also said that she would leave her marital home. But, later, she consumed poison and committed suicide.

The prosecution had accused the husband and his parents of cruelty and alleged that the woman was driven to suicide as her husband was having an illicit relationship with another woman. The trial court and the high court had convicted the accused.

After hearing appellant's counsel H A Raichura, a bench of Justices S J Mukhopadhaya and Dipak Misra said, "In the present case, in fact, there is no demand of dowry. If the evidence is appropriately appreciated, the deceased was pained and disturbed as the husband was having an illicit affair with a woman. Will such a situation amount to cruelty under Section 498A of IPC?"

The bench noted that the husband and wife had started living separately in the same house. "True, there is some evidence about the illicit relationship and even if the same is proven, we are of the considered opinion that cruelty, as envisaged under the first limb of Section 498A IPC, would not get attracted. It would be difficult to hold that the mental cruelty was of such a degree that it would drive the wife to commit suicide," it said.

Writing the judgment for the bench, Justice Misra said, "Mere extra-marital relationship, even if proved, would be illegal and immoral, as has been held by the Supreme Court earlier but it would take a different character if the prosecution brings some evidence on record to show that the accused had conducted in such a manner to drive the wife to commit suicide.

"In the instant case, the accused may have been involved in an illicit relationship with a woman, but in the absence of some other acceptable evidence on record that can establish such high degree of mental cruelty, the explanation to Section 498A which includes cruelty to drive a woman to commit suicide, would not be attracted." The bench acquitted the accused.

The woman hanged herself after hearing from people around the locality that her husband had an extra-marital relationship. After her death, her mother and brother also committed suicide, and the husband was held guilty under Sections 498-A and 306 of the IPC.

The judgment and order dated 13.04.2016 passed by the High Court of. Karnataka

According to Section 498-A of the IPC, a husband or his relative subjecting a woman to physical or mental cruelty can be sentenced to maximum period of three years of jail with fine.

MADHYA PRADESH HC: SEX WITH MARRIED MAN WITH UNDERSTANDING ABOUT HIS MARRIAGE NOT RAPE

Thursday, October 19, 2017

Love recognizes no barriers. It jumps hurdles, leaps fences, penetrates walls to arrive at its destination full of hope.

[19/10 9:49 pm] Biji Mon Adv: “CR”
V. CHITAMBARESH & SATHISH NINAN, JJ.
= = = = = = = = = = = = = = = = = = = = = = = =
W.P.(Crl). No.313 of 2017,
I.A.Nos.15973, 15979 & 15980 of 2017
and
Crl.M.C.No.5684 of 2017
= = = = = = = = = = = = = = = = = = = = = = = =
Dated this the 19th day of October, 2017
JUDGMENT
Chitambaresh, J.
“Love recognizes no barriers. It jumps hurdles,
leaps fences, penetrates walls to arrive at its
destination full of hope.”
said Maya Angelou, the American poet, memoirist and civil
right activist.
2. Sruthi Meledath ('Sruthi' for short) fell in love
with her classmate Anees Hameed ('Anees' for short) while
studying for the B.Sc.(Physics) course in the Pilathara Co-
operative Arts & Science College. Sruthi pursued her M.Sc.
[19/10 11:31 pm] Biji Mon Adv: And they require a little more elucidation. The concept of ‘judicial review’ is generally believed to be the invention of Chief Justice Marshall in his land mark judgment in Malberry Vs.Madison. True, Chief Justice Marshall enunciated the principle in unmistakable term. In that case Chief Justice Marshall only held that administrative decisions are amenable to correction by the Supreme Court. He enunciated nothing new. St.Augustine (AD.300) in his thesis ‘de doctrina’ said: lex injustia non est lex’; an unjust law is not a law at all. Centuries later, St.Thomas Aquinas in Summer Theologica (AD1200) re affirmed the same by saying that a law which is against the law of the nature and law of the God is no law. It need not be obeyed. He, however, gave caveat, namely, that provided the injury to be suffered by disobedience of the void law is not greater than the injury to be suffered by obedience to the unjust law. The doctrine of the right , nay , duty of of disobedience was thus laid down. A few centuries later, Chief Justice Edward Coke in Dr.Boliham’s case held enequem est aliequam rue sui est judiciam , namely, that if the Parliament were to make a law by which one of the parties to a dispute, a judge thereof, such a law is void. The assertion of Chief Justice Coke that the court of Common law could hold an Act of Parliament void, however, did not receive much acceptance and since then, no judge in England ever dated to assert so. There is valid reason for that. In England the House of Lords which is the Supreme Judicial Tribunal is itself the upper House of the Parliament. The practice since then is not to strike down an Act of Parliament as ‘void’, but in a lis between the subject and the state to declare an Act of parliament in so far as it voidable, the natural law to be void in so far as the subject is concerned. It is for the Parliament to take notice of the judicial declaration and to bring in necessary amendments to the law. In England, to challenge the wisdom of the Parliament constitute to be is in conceivable and there is no concept of judicial Review, an unruly horse, as we understand in India. However, all the 5 writs as enunciated in Article 226 and 32 are available in English; nay, we inherited it all from them alone.
It was necessary to briefly narrate as above the history of English law in the realm of “judicial review” , in view of the general misconception that civil courts have no power to interpret the constitution or declare an Act of Parliament or statutory instrument void.
While Article 226 and 32 expressly provide for judicial review by providing for five writs(Remedies) there is no express provision in the constitution which empower the High Courts or the Supreme Court to declare an Act of Parliament or statutory instrument to be void other than Article 13(2) of the Constitution. The question therefore is , which court is competent to declare an Act of Parliament or statutory instrument to be void and unconstitutional. The answer to this question could be found in The Code of Civil Procedure,1908. Section 9 invests the jurisdiction in the civil court to try all suits of a civil nature unless barred expressly or by implication. However, by At No.23 of 1942 under section 27A titled, “suits involving a substantial question of law as to the interpretation of the constitution or as to the validity of any statutory instrument” was incorporate in The Code of Civil Procedure,1908. The said amendment made it mandatory that no suit involving a substantial question of law as to the interpretation of Govt. of India Act shall not be determined without notice to the Attorney General; so too that no suit concerning the validity of the statutory instrument can be decided without notice to the Govt. Pleader of the question concerns the government. In 1950, the words ‘Government of India Act’ were substituted by the words ‘Constitution of India’.
Thus, two things were manifest from above, namely:

(i) The civil courts can interpret and determine a substantial question of law, as to the interpretation of the constitution of India;
(ii) Declare a statutory instrument void or unconstitutional.

Then question is:
Whether the civil courts could determine the constitutional validity of an Act of Parliament? The answer could only be in the affirmative. Because the power to determine ‘substantial question of law as to the interpretation of the constitution’ will undoubtedly take within it's ambit to declare an Act of Parliament as void, if it be so.
In all the chartered High Courts, the High Courts were invested civil original jurisdiction above a vertain pecuniary limits. Today except the chartered High Courts, no High Court enjoy original civil jurisdiction ; so too was the case at the time of the commencement of the constitution with the coming into force of the constitution by virtue of Articles 12, 13(2), and 372, thereof int became indispensible that a junior civil judge could determine a “substantial question of law as to the interpretation of the Constitution” so too invalidate an Act of Parliament , inter partes, the decision of the subordinate court having no precedential value. The Parliament felt it to be not so ideal a situation. Accordingly by Act No.24 of 195 a proviso was added to section 113 of The Code of Civil Procedure,1908 to the effect “if in a case pending before it involves a question as to the validity of any Act, ordinance or regulations or of any provision contained in the Act, ordinance.. the determination of which is necessary for the disposal of the case, the court shall refer the same for the opinion of the High Court.”
From the above it is crystal clear that the current practice of challenging the constitutional validity of an Act of Parliament or statutory instrument by instituting a writ petition in the High Courts or the Supreme Court of India is contrary to the Constitutional scheme and that the writ jurisdiction could be invoked in exceptional circumstances, for the enforcement of the remedies (5 kinds of writs) expressly stated in the Articles 226/32. It is not a matter of practical import; not merely academic. The reason is simple. The departure from the constitutional scheme as above has led to the exponential growth of writ jurisdiction; so too the face of law. In subordinate courts, there is nothing like face value/law. Cases are determined on it's merits, after issues are framed; evidence is allowed to be led for and against. The judge hardly exercises any discretion. He decides according to the evidence on record and law, in stark contrast to the practices in the High Courts. In the High Courts, under Article 226, no issues are framed; cases are decided summarily after at the admission stage itself. Judges openly say that he jurisdiction is discretionary. This dubious jurisdiction ( Article 226 & 32) has done great damage to the credibility of the justice delivery system as an impartial and objective with the undeniable perception among the common man that he can get justice if only he could afford an expensive lawyer, preferably of the judicial dynasties.
The situation to India’s seemingly irresolvable crisis in the dispensation of justice is to restore the pristine glory of the civil courts; recruit the best legal brain at the young age; train them; provide them the best pay and perks; so too the infrastructure; abolish if possible all tribunals; strengthen and stream line the subordinate judiciary/civil court. There in so other means than this to rebuild a robust justice delivery system.

Tuesday, October 10, 2017

SC Dismisses Centre’s Appeal Against Treating Children Born Out Of Void Marriages As Legitimate.

BY: LIVE LAW.

On September 18, a Supreme Court bench of Justices Adarsh Kumar Goel and Uday Umesh Lalit, dismissed the Centre’s appeal against a Division Bench judgment of the Madras High Court, which had validly held that children born out of void marriages are legitimate.

The Centre had first appealed against the judgment of the Central Administrative Tribunal before the Division Bench, and having lost in both, pursued its appeal in the Supreme Court, displaying complete non-application of mind, adding one more instance to the category of unnecessary litigation, which ought to have been avoided, to save precious resources.

The matter relates to the appointment on compassionate grounds in Southern Railway, of a deceased employee’s son, born to his second wife, as he did not have any issue from his first wife. The Southern Railway rejected the claim for appointment on the ground that children born to second wife were not recognised and second wife was not entitled to any benefits, as per the instructions of the Railway Board. According to the Railway Board’s Circulated, dated 2.1.1992, appointment on compassionate ground, cannot be granted to the children born to second wife.

The Madras Bench of the CAT rejected the Railway’s contention on the basis of the judgment rendered by the Division Bench of the Kolkata High Court in the case of Smt.Namita Goldar and another v Union of India and others.

The Supreme Court too, in the case of Rameshwari Devi v State of Bihar, [2000(2) SCC 431) had held that the second marriage during the subsistence of first marriage may be illegal, but the children born out of such second marriage are legitimate and are also entitled to the estate of the father. It is because under Section 16 of the Hindu Marriage Act, children of a void marriage are legitimate.

The CAT, therefore, held that no distinction can be made amongst the children of the first and second wife of a deceased employee. In the present case, the first wife was issueless, and died shortly after the death of the employee concerned.

The CAT thus quashed the 1992 circular, issued by the Railway Board, to the extent that it prevented the children of the second wife from being considerd for appointments on compassionate ground.

The Madras High Court’s Division Bench, in view of the Kolkata High Court and Supreme Court’s decisions, held that the Centre’s stand against appointment of children born out of second marriage on compassionate ground, could not be countenanced in law.

The Madras High Court’s judgment was given by bench of Justices K.K.Sasidharan and V.Parthiban on February 28, 2017.

Union of India -VS- M. Karumbayee. S.C. 2017.

SC : Directs To Form Family Welfare Committee To Examine 498a Misuse, No Arrests Before Committee’s Report.

IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 1265 OF 2017[Arising out of Special Leave Petition (Crl.) No.2013 of 2017]
Rajesh Sharma & ors. …AppellantsVersusState of U.P. & Anr. …Respondents
J U D G M E N TAdarsh Kumar Goel, J.1. Leave granted.2. The question which has arisen in this appeal is whether any directions are called for to prevent the misuse of Section 498A, as acknowledged in certain studies and decisions. The Court requested Shri A.S. Nadkarni, learned ASG and Shri V.V. Giri, learned senior counsel to assist the Court as amicus. We place on record our gratitude for the assistance rendered by learned ASG Shri Nadkarni and learned senior counsel Shri Giri who in turn was ably assisted by advocates Ms. Uttara Babbar, Ms. Pragya Baghel and Ms. Svadha Shanker.3. Proceedings have arisen from complaint dated 2nd December, 2013 filed by respondent No.2 wife of appellant No.1. Appellants 2 to 5 are the parents and siblings of appellant No.1. The complainant alleged that she was married to appellant No.1 on 28th November, 2012. Her father gave dowry as per his capacity but the appellants were not happy with the extent of the dowry. They started abusing the complainant. They made ademand of dowry of Rs.3,00,000/- and a car which the family could not arrange. On 10th November, 2013, appellant No.1 dropped the complainant at her matrimonial home. She was pregnant and suffered pain in the process and her pregnancy was terminated. On the said version, and further version that her stridhan was retained, appellant No.1 was summoned under Section 498A and Section 323 IPC. Appellants 2 to 5 were not summoned. Order dated 14thJuly, 2014 read as follows:“After perusal of the file and the document brought on record. It is clear that the husband Shri Rajesh Sharma demanded car and threelacs rupees and in not meeting the demand. It appears that he has tortured the complainant. So far as torture and retaining of the stri dhan and demanding 50,000 and agold chain and in not meeting the demand thetorture is attributable against Shri Rajesh Sharma. Rajesh Sharma appears to be main accused. In the circumstances, rest of the accused Vijay Sharma, Jaywati Sharma, Praveen Sharma and Priyanka Sharma have not committed any crime and they have not participated in commission of the crime. Whereas, it appears that Rajesh Sharma has committed an offence under Section 498A, 323 IPC and read with section 3 / 4 DP act appears to have prima facie made out. Therefore, a summon be issued against him.”4. Against the above order, respondentNo.2 preferred a revision petition and submitted that appellants 2 to 5 should also have been summoned. The said petition was accepted by the Additional Sessions Judge, Jaunpur vide order dated 3rd July, 2015. The trial court was directed to take a fresh decision in the matter. Thereafter, the trial court vide order dated 18th August, 2015 summoned appellants 2 to 5 also. The appellants approached the High Court under Section 482 CrPCagainst the order of summoning. Though the matter was referred to the mediation centre, the mediation failed. Thereafter, the High Court found no ground to interfere with the order of summoning and dismissed the petition. Hence this appeal.5. Main contention raised in support ofthis appeal is that there is need to check the tendency to rope in all familymembers to settle a matrimonial dispute. Omnibus allegations against all relatives of the husband cannot be taken at face value when in normal course it may only be the husband or at best his parents who may be accused of demanding dowry or causing cruelty. To check abuse of over implication, clear supporting material is needed to proceed against other relatives of a husband. It is stated that respondent No.2 herself left the matrimonial home. Appellant No.2, father of appellant No.1, is a retired government employee. Appellant No.3 is a house wife. Appellant No.4 is unmarried brother and appellant No.5 is unmarried sister who is a government employee. Appellants 2 to 5 had no interest in making any demand of dowry.6. Learned counsel for respondent No.2 supported the impugned order and the averments in the complaint.7. Learned ASG submitted that Section498A was enacted to check unconscionable demands by greedy husbands and their families which at times result in cruelty to women and also suicides. He, however, accepted that there is a growing tendency to abuse the said provision to rope in all the relatives including parents of advanced age, minor children, siblings,grand-parents and uncles on the strength of vague and exaggerated allegations without there being any verifiable evidence of physical or mental harm or injury. At times, this results in harassment and even arrest of innocent family members, including women and senior citizens. This may hamper any possible reconciliation and reunion of a couple. Reference has been made to the statistics from the Crime Records Bureau (CRB) as follows:“9. That according to Reports of National Crime Record Bureau in 2005, for a total 58,319 cases reported under Section 498A IPC, a totalof 1,27,560 people were arrested, and 6,141 cases were declared false on account of mistake of fact or law. While in 2009 for a total 89,546 cases reported, atotal of 1,74,395 people were arrested and 8,352 cases were declared false on account of mistake of fact or law. 10. That according to Report of Crime in India, 2012 Statistics, NationalCrime Records Bureau, Ministry of Home Affairsshowed that for the yearof 2012, a total of 197,762 people all across India were arrested under Section 498A, Indian Penal Code. The Report furthershows that approximately a quarter of those arrested were women that is 47,951 of the total were perhaps mother or sisters of the husband. However mostsurprisingly the rate of charge-sheet filing for the year 2012, under Section 498A IPC was atan exponential height of 93.6% while the conviction rate was at a staggering low at 14.4% only. The Report stated that as many as 3,72,706 cases were pending trial of which 3,17,000 were projected to be acquitted. 11. Thataccording to Report of Crime in India, 2013, the National Crime Records Bureau further pointed out that of 4,66,079 cases that were pendingin 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 under Section498A IPC was also a staggering low at 15.6%.”8. Referring to Sushil Kumar Sharma versus Union of India , Preeti Gupta versus State of Jharkhand , Ramgopal versus State of Madhya Pradesh , Savitri Devi versus Ramesh Chand4 , it was submitted that misuse of the provision is judicially acknowledged and there is need to adopt measures to prevent such misuse. The Madras High Court in M.P. No.1 of 2008 in Cr. O.P. No.1089 of 2008 dated 4th August, 2008 directed issuance of following guidelines:“It must also be borne inmind that the object behind the enactment ofSection 498-A IPC and the Dowry Prohibition Act is to check and curb the menace of dowry and at the same time, to save the matrimonial homes from destruction. Our experience shows that, apart from the husband, all family members are implicated and dragged to the police stations. Though arrest of those persons is not at all necessary, in a number of cases, such harassment is made simply to satisfy the egoand anger of the complainant. By suitablydealing with such matters, the injury to innocents could be avoided to a considerable extent by the Magistrates, but, if the Magistrates themselves accede to the bare requests of the police without examining the actual state of affairs, it would create negative effects thereby, the very purpose of the legislation would be defeated and the doors of conciliation would be closed forever. The husband and his family members may have difference of opinion in the dispute, for which, arrest and judicial remand are not the answers. The ultimate object of every legal system is to punish the guilty and protect the innocents.”9. Delhi High Court vide order dated 4th August, 2008 in Chander Bhan versus State5 in Bail Application No.1627/2008 directed issuance of following guidelines :“2. Police Authorities: (a) Pursuant to directions given by the Apex Court, the Commissioner of Police,Delhi vide Standing Order No.330/2007 had already issued guidelines for arrest in the dowry cases registered under Sections 498-A/406 IPC and the said guidelines should be followed by the Delhi Police strictly and scrupulously.(i) No case under Section 498-A/406 IPC should be registered without the prior approval of DCP/Addl.DCP.(ii) Arrest of main accused should be made only after thorough investigation has been conducted andwith the prior approval of the ACP/DCP.(iii) Arrest of the collateral accused such as father-in-law, mother-in-law, brother-in-law or sister-in-law etc. should only be made after prior approval of DCP on file.(b) Police should also depute a well trained and a well behaved staffin all the crime against women cells especially the lady officers, all well equipped with the abilities of perseverance, persuasion, patience and forbearance.(c) FIR in such cases should not be registeredin a routine manner.(d) The endavour of the Police should be to scrutinize complaints very carefully and then register FIR.(e) The FIR should be registered only against those persons against whom there are strong allegations of causing any kind of physical or mental cruelty as well asbreach of trust.(f) All possible efforts should be made, before recommending registration of any FIR, for reconciliation and in case it is found that there is no possibility of settlement, then necessary steps in the first instance be taken to ensure return of stridhan and dowry articles etc. by the accused party to the complainant.”10. In Arnesh Kumar versus State of Bihar6 , this Court directed as follows :“11.1 All the State Governments to instructits police officers not to automatically arrest when a case under Section 498-A of the IPCis registered but to satisfy themselves about the necessity for arrest under the parameters laid down above flowing from Section 41 Cr.PC;11.2 All police officers be provided with a check list containing specified sub-clauses under Section 41(1)(b)(ii);11.3 The police officer shall forward the check list duly filed and furnishthe reasons and materials which necessitated the arrest, while forwarding/producing the accused before the Magistrate for further detention;11.4 The Magistrate while authorizing detention of the accused shall peruse the report furnished by the police officer in terms aforesaid and only after recording its satisfaction, the Magistrate will authorizedetention;11.5 The decision not to arrest an accused, be forwarded to the Magistrate within two weeks from the date of the institution of the case with a copy to the Magistrate which may be extended by the Superintendent of policeof the district for the reasons to be recorded in writing;11.6 Notice of appearance in terms of Section 41A of Cr.PC be served on the accused within two weeks from the date of institution of the case, which may be extended by the Superintendent of Policeof the District for the reasons to be recorded in writing;11.7 Failure to comply with the directions aforesaid shall apart from rendering the police officers concerned liable for departmental action, they shall also be liable to be punished for contempt of court to be instituted before High Court having territorial jurisdiction.11.8 Authorising detention without recording reasons as aforesaid by the judicial Magistrate concerned shall be liable for departmental action by the appropriate High Court.”11. Learned ASG suggested that there must be some preliminary inquiry on the lines of observations in Lalita Kumari versus Government of Uttar Pradesh . Arrest of a relative other than husband could only be after permission from the concerned Magistrate. There should be no arrest of relatives aged above 70 years. Power of the police to straight away arrest must be prohibited. While granting permission, the court must ascertain that there is prima facie material of the accused having done some overt and covert act. The offence should be made compoundable and bailable. The role of each accused must be specified in the complaint and the complaint must be accompanied by a signed affidavit. The copy of the preliminary enquiry report should be furnished to the accused.READ 498A quash of Non relative12. Shri V. Giri, learned senior counsel assisted by advocates Ms. Uttara Babbar, Ms. Pragya Baghel and Ms. Svadha Shanker submitted that arrest in an offence under Section 498A should be only after recording reasonsand express approval from the Superintendent of Police. In respect of relatives who are ordinarily residing outside India, the matter should proceed only if the IO is convinced thatarrest is necessary for fair investigation. In such cases impounding of passport or issuance ofred corner notice should be avoided. Procedure under Section 14 of the Protection of Women from Domestic Violence Act, 2005, of counseling should be made mandatory before registration of a case under Section 498A.13. We have given serious consideration to the rival submissions as well as suggestions made by learned ASG and Shri V. Giri, Senior Advocate assisted by Advocates Ms. Uttara Babbar, Ms. Pragya Baghel and Ms. Svadha Shanker. We have also perused 243rd Law Commission Report (August, 2012), 140th Report of the Rajya Sabha Committee on Petition(September, 2011) as well as several decisions to which our attention has been invited.14. Section 498A was inserted in the statute with the laudable object of punishing cruelty at the hands of husband or his relatives against a wife particularly when such cruelty had 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.The expression ‘cruelty’ in Section 498A covers conduct which may drive the women to commit suicide or causegrave injury (mental or physical) or danger to life or harassment with a view to coerce her to meet unlawful demand.8 It is a matter of serious concern that large number of cases continue to be filed under Section 498A alleging harassment of married women. We have already referred to some of the statistics from the Crime Records Bureau. This Court had earliernoticed the fact that most of such complaints are filed in the heat of the moment over trivial issues. Many of such complaints are not bona fide. At the time of filing of the complaint, implications and consequences are not visualized. At times such complaints lead to uncalled for harassment not only to the accused but also to the complainant. Uncalled for arrest may ruin the chances of settlement. This Court had earlier observed that a serious review of the provision was warranted9 . The matter also appears to have been considered by the Law Commission, the Malimath Committee, the Committee on Petitions in the Rajya Sabha, the HomeMinistry, which have been referred to in the earlier part of the Judgment. Theabuse of the 8 Explanation to Section 498A Preeti Gupta (supra) provision was also noted in the judgments of this Court referred to earlier. Some High Courts have issued directions to check such abuse. In Arnesh Kumar (supra) this Court gave directions to safeguard uncalled for arrests. Recommendation has also been made by the Law Commission to make the offence compoundable.READ Section 498A/34 IPC quashed against some Revisionists15. Following areas appear to require remedial steps :- i) Uncalled for implication of husband and his relatives and arrest. ii) Continuation of proceedings in spite of settlement between the parties since the offence is non-compoundable and uncalled for hardship to parties on that account.16. Function of this Court is not to legislate but only to interpret the law. No doubt in doing so laying down of norms is sometimes unavoidable.10 Just and fair procedure being part of fundamental right to life,11 interpretation is required to be placed on a penal provision so that its working is not unjust, unfair or unreasonable. The court has incidentalpower to quash even a 10 Sahara IndiaReal Estate Corporation Limited v. Securities and Exchange Board of India v. Union of India , Union of India vs. Raghubir Singh , Dayaram vs. Sudhir Batham State of Punjab vs. Dalbir Singh non-compoundable case of private nature, if continuing the proceedings is found to be oppressive.12 While stifling a legitimate prosecution is against public policy, if the proceedings in an offence of private nature are found to be oppressive, power of quashing is exercised.17. We have considered the background of the issue and also taken into account the 243rd Report of the Law Commission dated 30th August, 2012, 140th Report of the Rajya Sabha Committee on Petitions (September, 2011) and earlier decisions of this Court. We are conscious of the object for which the provision was brought into the statute. At the same time, violation of human rights of innocent cannot be brushed aside. Certain safeguards against uncalled for arrest or insensitive investigation have been addressed by this Court. Still, the problem continues to a great extent.READ Implicating husband in a false case amounts to cruelty18. To remedy the situation, we are of the view that involvement of civil society in the aid of administration of justice can be one of the steps, apart from the investigating officers and the concerned 12 Gian Singh vs. State of Punjab trial courts being sensitized. It is also necessary to facilitate closure of proceedings where a genuine settlement has been reached instead of parties being required to move High Court only for that purpose.19. Thus, after careful consideration ofthe whole issue, we consider it fit to give following directions :-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 yearby 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 maybe given such honorarium as may be considered viable.(k) It will be open to the District and Sessions Judge to utilize the cost fundwherever considered necessary and proper.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;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 itselfbe 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;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; andvii) 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.viii) These directions will not apply to the offences involving tangible physical injuries or death.20. After seeing the working of the above arrangement for six months but latest by March 31, 2018, National Legal ServicesAuthority may give a report about needfor any change in above directions or for any further directions. The matter may be listed for consideration by the Court in April, 2018.21. Copies of this order be sent to National Legal Services Authority, Director General of Police of all the States and the Registrars of all the High Courts for further appropriate action.22. It will be open to the parties in the present case to approach the concerned trial or other court for further orders in the light of the above directions.
(Adarsh Kumar Goel)(Uday Umesh Lalit)
New Delhi;
27th July, 2017.

Guidelines of Supreme court to prevent misuse of S 498A of IPC

Thus, after careful consideration of the whole issue, we consider it fit to give following directions:

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.

(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.

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;

iv) If a bail application is fled 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;

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.

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

IN THE SUPREME COURT OF INDIA

Criminal Appeal No. 1265 of 2017 (Arising out of Special Leave Petition (Crl.) No. 2013 of 2017)

Decided On: 27.07.2017

Rajesh Sharma and Ors.
Vs.
State of U.P. and Ors.

Hon'ble Judges/Coram:
A.K. Goel and U.U. Lalit, JJ.

1. Leave granted.

2. The question which has arisen in this appeal is whether any directions are called for to prevent the misuse of Section 498A, as acknowledged in certain studies and decisions. The Court requested Shri A.S. Nadkarni, learned ASG and Shri V.V. Giri, learned senior Counsel to assist the Court as amicus. We place on record our gratitude for the assistance rendered by learned ASG Shri Nadkarni and learned senior Counsel Shri Giri who in turn was ably assisted by advocates Ms. Uttara Babbar, Ms. Pragya Baghel and Ms. Svadha Shanker.

3. Proceedings have arisen from complaint dated 2nd December, 2013 fled by Respondent No. 2 wife of Appellant No. 1. Appellants 2 to 5 are the parents and siblings of Appellant No. 1. The complainant alleged that she was married to Appellant No. 1 on 28th November, 2012. Her father gave dowry as per his capacity but the Appellants were not happy with the extent of the dowry. They started abusing the complainant. They made a demand of dowry of Rs. 3,00,000/- and a car which the family could not arrange. On 10th November, 2013, Appellant No. 1 dropped the complainant at her matrimonial home. She was pregnant and suffered pain in the process and her pregnancy was terminated. On the said version, and further version that her stridhan was retained, Appellant No. 1 was summoned Under Section 498A and Section 323 Indian Penal Code. Appellants 2 to 5 were not summoned. Order dated 14th July, 2014 read as follows:

After perusal of the file and the document brought on record. It is clear that the husband Shri Rajesh Sharma demanded car and three lacs rupees and in not meeting the demand. It appears that he has tortured the complainant. So far as torture and retaining of the stri dhan and demanding 50,000 and a gold chain and in not meeting the demand the torture is attributable against Shri Rajesh Sharma. Rajesh Sharma appears to be main accused. In the circumstances, rest of the Accused Vijay Sharma, Jaywati Sharma, Praveen Sharma and Priyanka Sharma have not committed any crime and they have not participated in commission of the crime. Whereas, it appears that Rajesh Sharma has committed an offence Under Section 498A, 323 Indian Penal Code and read with Section 3/4 DP act appears to have prima facie made out. Therefore, a summon be issued against him.

4. Against the above order, Respondent No. 2 preferred a revision petition and submitted that Appellants 2 to 5 should also have been summoned. The said petition was accepted by the Additional Sessions Judge, Jaunpur vide order dated 3rd July, 2015. The trial court was directed to take a fresh decision in the matter. Thereafter, the trial court vide order dated 18th August, 2015 summoned Appellants 2 to 5 also. The Appellants approached the High Court Under Section 482 Code of Criminal Procedure against the order of summoning. Though the matter was referred to the mediation centre, the mediation failed. Thereafter, the High Court found no ground to interfere with the order of summoning and dismissed the petition. Hence this appeal.

5. Main contention raised in support of this appeal is that there is need to check the tendency to rope in all family members to settle a matrimonial dispute. Omnibus allegations against all relatives of the husband cannot be taken at face value when in normal course it may only be the husband or at best his parents who may be Accused of demanding dowry or causing cruelty. To check abuse of over implication, clear supporting material is needed to proceed against other relatives of a husband. It is stated that Respondent No. 2 herself left the matrimonial home. Appellant No. 2, father of Appellant No. 1, is a retired government employee. Appellant No. 3 is a house wife. Appellant No. 4 is unmarried brother and Appellant No. 5 is unmarried sister who is a government employee. Appellants 2 to 5 had no interest in making any demand of dowry.

6. Learned Counsel for Respondent No. 2 supported the impugned order and the averments in the complaint.

7. Learned ASG submitted that Section 498A was enacted to check unconscionable demands by greedy husbands and their families which at times result in cruelty to women and also suicides. He, however, accepted that there is a growing tendency to abuse the said provision to rope in all the relatives including parents of advanced age, minor children, siblings, grand-parents and uncles on the strength of vague and exaggerated allegations without there being any verifiable evidence of physical or mental harm or injury. At times, this results in harassment and even arrest of innocent family members, including women and senior citizens. This may hamper any possible reconciliation and reunion of a couple. Reference has been made to the statistics from the Crime Records Bureau (CRB) as follows:

9. That according to Reports of National Crime Record Bureau in 2005, for a total 58,319 cases reported Under Section 498A Indian Penal Code, a total of 1,27,560 people were arrested, and 6,141 cases were declared false on account of mistake of fact or law. While in 2009 for a total 89,546 cases reported, a total of 1,74,395 people were arrested and 8,352 cases were declared false on account of mistake of fact or law.

10. That according to Report of Crime in India, 2012 Statistics, National Crime Records Bureau, Ministry of Home Affairs showed that for the year of 2012, a total of 197,762 people all across India were arrested Under Section 498A, Indian Penal Code. The Report further shows that approximately a quarter of those arrested were women that is 47,951 of the total were perhaps mother or sisters of the husband. However most surprisingly the rate of charge-sheet fling for the year 2012, Under Section 498A Indian Penal Code was at an exponential height of 93.6% while the conviction rate was at a staggering low at 14.4% only. The Report stated that as many as 3,72,706 cases were pending trial of which 3,17,000 were projected to be acquitted.

11. That according to Report of Crime in India, 2013, the National Crime Records Bureau further pointed out that 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 Under Section 498A Indian Penal Code was also a staggering low at 15.6%.

8. Referring to Sushil Kumar Sharma v. Union of India MANU/SC/0418/2005 : (2005) 6 SCC 281, Preeti Gupta v. State of Jharkhand MANU/SC/0592/2010 : (2010) 7 SCC 667, Ramgopal v. State of Madhya Pradesh MANU/SC/0562/2010 : (2010) 13 SCC 540, Savitri Devi v. Ramesh Chand ILR (2003) I Delhi 484, it was submitted that misuse of the provision is judicially acknowledged and there is need to adopt measures to prevent such misuse. The Madras High Court in M.P. No. 1 of 2008 in Cr.O.P. No. 1089 of 2008 dated 4th August, 2008 directed issuance of following guidelines:

It must also be borne in mind that the object behind the enactment of Section 498-A Indian Penal Code and the Dowry Prohibition Act is to check and curb the menace of dowry and at the same time, to save the matrimonial homes from destruction. Our experience shows that, apart from the husband, all family members are implicated and dragged to the police stations. Though arrest of those persons is not at all necessary, in a number of cases, such harassment is made simply to satisfy the ego and anger of the complainant. By suitably dealing with such matters, the injury to innocents could be avoided to a considerable extent by the Magistrates, but, if the Magistrates themselves accede to the bare requests of the police without examining the actual state of affairs, it would create negative effects thereby, the very purpose of the legislation would be defeated and the doors of conciliation would be closed forever. The husband and his family members may have difference of opinion in the dispute, for which, arrest and judicial remand are not the answers. The ultimate object of every legal system is to punish the guilty and protect the innocents.

9. Delhi High Court vide order dated 4th August, 2008 in Chander Bhan v. State (2008) 151 DLT 691 in Bail Application No. 1627/2008 directed issuance of following guidelines:

2. Police Authorities:

(a) Pursuant to directions given by the Apex Court, the Commissioner of Police, Delhi vide Standing Order No. 330/2007 had already issued guidelines for arrest in the dowry cases registered Under Sections 498-A/406 Indian Penal Code and the said guidelines should be followed by the Delhi Police strictly and scrupulously.

(i) No case Under Section 498-A/406 Indian Penal Code should be registered without the prior approval of DCP/Addl. DCP.

(ii) Arrest of main Accused should be made only after thorough investigation has been conducted and with the prior approval of the ACP/DCP.

(iii) Arrest of the collateral Accused such as father-in-law, mother-in-law, brother-in-law or sister-in-law etc. should only be made after prior approval of DCP on file.

(b) Police should also depute a well trained and a well behaved staff in all the crime against women cells especially the lady officers, all well equipped with the abilities of perseverance, persuasion, patience and forbearance.

(d) The endeavor of the Police should be to scrutinize complaints very carefully and then register FIR.

(e) The FIR should be registered only against those persons against whom there are strong allegations of causing any kind of physical or mental cruelty as well as breach of trust.

(f) All possible efforts should be made, before recommending registration of any FIR, for reconciliation and in case it is found that there is no possibility of settlement, then necessary steps in the first instance be taken to ensure return of stridhan and dowry articles etc. by the Accused party to the complainant.

10. In Arnesh Kumar v. State of Bihar MANU/SC/0559/2014 : (2014) 8 SCC 273, this Court directed as follows:

11.1 All the State Governments to instruct its police officers not to automatically arrest when a case Under Section 498-A of the Indian Penal Code is registered but to satisfy themselves about the necessity for arrest under the parameters laid down above flowing from Section 41, Code of Criminal Procedure;

11.2 All police officers be provided with a check list containing specified sub-clauses Under Section 41(1)(b)(ii);

11.3 The police officer shall forward the check list duly fled and furnish the reasons and materials which necessitated the arrest, while forwarding/producing the Accused before the Magistrate for further detention;

11.4 The Magistrate while authorizing detention of the Accused shall peruse the report furnished by the police officer in terms aforesaid and only after recording its satisfaction, the Magistrate will authorize detention;

11.5 The decision not to arrest an accused, be forwarded to the Magistrate within two weeks from the date of the institution of the case with a copy to the Magistrate which may be extended by the Superintendent of police of the district for the reasons to be recorded in writing;

11.6 Notice of appearance in terms of Section 41A of Code of Criminal Procedure be served on the Accused within two weeks from the date of institution of the case, which may be extended by the Superintendent of Police of the District for the reasons to be recorded in writing;

11.7 Failure to comply with the directions aforesaid shall apart from rendering the police officers concerned liable for departmental action, they shall also be liable to be punished for contempt of court to be instituted before High Court having territorial jurisdiction.

11.8 Authorising detention without recording reasons as aforesaid by the judicial Magistrate concerned shall be liable for departmental action by the appropriate High Court.

11. Learned ASG suggested that there must be some preliminary inquiry on the lines of observations in Lalita Kumari v. Government of Uttar Pradesh MANU/SC/1166/2013 : (2014) 2 SCC 1. Arrest of a relative other than husband could only be after permission from the concerned Magistrate. There should be no arrest of relatives aged above 70 years. Power of the police to straight away arrest must be prohibited. While granting permission, the court must ascertain that there is prima facie material of the Accused having done some overt and covert act. The offence should be made compoundable and bailable. The role of each Accused must be specified in the complaint and the complaint must be accompanied by a signed affidavit. The copy of the preliminary enquiry report should be furnished to the accused.

12. Shri V. Giri, learned senior Counsel assisted by advocates Ms. Uttara Babbar, Ms. Pragya Baghel and Ms. Svadha Shanker submitted that arrest in an offence Under Section 498A should be only after recording reasons and express approval from the Superintendent of Police. In respect of relatives who are ordinarily residing outside India, the matter should proceed only if the IO is convinced that arrest is necessary for fair investigation. In such cases impounding of passport or issuance of red corner notice should be avoided. Procedure Under Section 14 of the Protection of Women from Domestic Violence Act, 2005, of counseling should be made mandatory before registration of a case Under Section 498A.

13. We have given serious consideration to the rival submissions as well as suggestions made by learned ASG and Shri V. Giri, Senior Advocate assisted by Advocates Ms. Uttara Babbar, Ms. Pragya Baghel and Ms. Svadha Shanker. We have also perused 243rd Law Commission Report (August, 2012), 140th Report of the Rajya Sabha Committee on Petition (September, 2011) as well as several decisions to which our attention has been invited.

14. Section 498A was inserted in the statute with the laudable object of punishing cruelty at the hands of husband or his relatives against a wife particularly when such cruelty had 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. The expression 'cruelty' in Section 498A covers conduct which may drive the women to commit suicide or cause grave injury (mental or physical) or danger to life or harassment with a view to coerce her to meet unlawful demand1. It is a matter of serious concern that large number of cases continue to be fled Under Section 498A alleging harassment of married women. We have already referred to some of the statistics from the Crime Records Bureau. This Court had earlier noticed the fact that most of such complaints are fled in the heat of the moment over trivial issues. Many of such complaints are not bona fide. At the time of fling of the complaint, implications and consequences are not visualized. At times such complaints lead to uncalled for harassment not only to the Accused but also to the complainant. Uncalled for arrest may ruin the chances of settlement. This Court had earlier observed that a serious review of the provision was warranted2. The matter also appears to have been considered by the Law Commission, the Malimath Committee, the Committee on Petitions in the Rajya Sabha, the Home Ministry, which have been referred to in the earlier part of the Judgment. The abuse of the provision was also noted in the judgments of this Court referred to earlier. Some High Courts have issued directions to check such abuse. In Arnesh Kumar (supra) this Court gave directions to safeguard uncalled for arrests. Recommendation has also been made by the Law Commission to make the offence compoundable.

15. Following areas appear to require remedial steps:

i) Uncalled for implication of husband and his relatives and arrest.

ii) Continuation of proceedings in spite of settlement between the parties since the offence is non-compoundable and uncalled for hardship to parties on that account.

16. Function of this Court is not to legislate but only to interpret the law. No doubt in doing so laying down of norms is sometimes unavoidable3. Just and fair procedure being part of fundamental right to life,4 interpretation is required to be placed on a penal provision so that its working is not unjust, unfair or unreasonable. The court has incidental power to quash even a non-compoundable case of private nature, if continuing the proceedings is found to be oppressive5. While stifling a legitimate prosecution is against public policy, if the proceedings in an offence of private nature are found to be oppressive, power of quashing is exercised.

17. We have considered the background of the issue and also taken into account the 243rd Report of the Law Commission dated 30th August, 2012, 140th Report of the Rajya Sabha Committee on Petitions (September, 2011) and earlier decisions of this Court. We are conscious of the object for which the provision was brought into the statute. At the same time, violation of human rights of innocent cannot be brushed aside. Certain safeguards against uncalled for arrest or insensitive investigation have been addressed by this Court. Still, the problem continues to a great extent.

18. To remedy the situation, we are of the view that involvement of civil society in the aid of administration of justice can be one of the steps, apart from the investigating officers and the concerned trial courts being sensitized. It is also necessary to facilitate closure of proceedings where a genuine settlement has been reached instead of parties being required to move High Court only for that purpose.

19. Thus, after careful consideration of the whole issue, we consider it fit to give following directions: