A Note On Latest Supreme Court Directive On Section 498A Cases

Lakshmy Iyengar

14 Aug 2017 4:48 AM GMT

  • A Note On Latest Supreme Court Directive On Section 498A Cases

    The guidelines of the Supreme Court in Rajesh Sharma and others vs. State of Uttar Pradesh and another in cases relating to complaints U/S 498A of the Code of Criminal Procedure has baffled the entire nation. In a Country where the rights of women are sought to be protected by Courts, expanding the limited understanding of certain provisions, the sudden need to regress is...

    The guidelines of the Supreme Court in Rajesh Sharma and others vs. State of Uttar Pradesh and another in cases relating to complaints U/S 498A of the Code of Criminal Procedure has baffled the entire nation. In a Country where the rights of women are sought to be protected by Courts, expanding the limited understanding of certain provisions, the sudden need to regress is unfathomable.

    The mandatory guidelines that, complaints U/S 498A would have to be referred to Family Welfare Committees, who would in turn submit their report to the District Legal Service Authority and that there shall be no arrest of the accused until such time defeats the very purpose of the section.

    While it is justifiable for the Courts to bring about checks and balances when there is misuse of law, the extent that a harassed woman would now have to go through, just to register a case is beyond comprehension.

    Coming from a counsel who adventitiously represents more men than women in family disputes, an unbiased and realistic views may be expected. The strive for justice is most certainly not the opinion of feminists or misandrists but that of persons with a conscience.

    The ground realities which have not been reflected in any study could be the reason for such misguided guidelines. The misuse of Section 498A is admittedly rampant, but forms a miniscule percentage when opposed to actual and genuine cases filed. The genuine cases are horrid tales. Horrid tales of not what the harassed women endure in their marital homes. Horrid tales of what the women encounter just to register an F.I.R.

    The woman spends her first few days running pillar to post i.e., between different police stations pleading for justice. She is shunted out conveniently to another station on the grounds of jurisdiction though the law is clear on that aspect. She is then asked to go to a women’s police station, who in turn ask her to get an approval of the A.C.P. All this assuming the officers are actually present in the stations as most often, several trips are made just to get an audience with the concerned officer.

    As the shuttling process between the Commissioner’s office and the final destination police station is complete, the F.I.R. is registered with great reluctance. The woman is asked to alter the language in her complaint to suit the convenience of the police. They then register the F.I.R. in the local language, use terminology that the hapless woman most certainly cannot comprehend. The witness statements are recorded incorrectly, quite often deliberately and intentionally to give it a look of a third person narration of events rather than an actual account of the happenings. What isn’t apparent to the victim is that her case before the Magistrate has already been weakened.

    The torrid times have just begun. There is no sign of a ‘mahazar’ being done. The investigation remains incomplete and the charge sheet isn’t submitted before the Magistrate for the trial to begin. Since there is no time frame, the agony of the victim only worsens.

    Digging deep into her moth filled pockets to ensure it finally reaches the Courts, the already doomed woman has a faint ray of hope, to find justice in the Court. Needless to say, the husband and his family have in such time moved the Courts to secure bails for themselves, comfortable and protected they remain. The victim is placed in the hands of a Public Prosecutor of the Court before which her matter is to be heard. The Public Prosecutor gives no time to the victim. The Public Prosecutor doesn’t really understand the case beyond what is in the file before him and treats her with disdain. There are some exceptional Public Prosecutors who have done excellent work, but this is targeted at the larger and general happenings.

    The victim is present in the Court on every hearing, treated poorly by the Court peon, the Public Prosecutor and at times even the Magistrate. The husband and Co. on the other hand are never in the Court. Their Advocate files exemption applications for them, which are allowed generously by the Magistrates, exempting them from their appearance in the Court. Therefore the victim is punished by putting her through the ordeal of the police station outings, innumerable Court hearings, no justice anywhere in sight even after 2 years with the case chugging along aimlessly.

    The guidelines dictated by the Supreme Court in Rajesh Sharma and others vs. State of Uttar Pradesh and another direct the lower Courts to exempt the Accused from appearing in person and allow him video conferencing facility. Some men have it all! There already existed the luxury of the ever so generous exemption applications and now the husband can contest the matter from the comfortable confines of his home and sofa that his wife was made to buy before entering the matrimonial home.

    The victim is alone, all through this entire trauma. The Accused has his lawyer to defend him and bully the victim in the Court. The Victim is left to fend for herself as the Public Prosecutor is indifferent, the Magistrate wants one less matter, one disposal to his set target and as a result the Victim is pressurized into exploring the possibility of a settlement through mediation. Money is offered as alimony in exchange for proceedings to be dropped against the accused. Both the Magistrate and the Mediator take it upon themselves to explain to the victim that she must consider her whole life ahead and not focus on the case. That she could get remarried and start a fresh life.

    When the victim expresses no interest towards monetary compensation and expects justice, she is lectured that putting him behind bars is not going to solve her problem. Where would she live? What would she do for a living?

    The victim is also warned that she may not succeed in her case and the husband may go scot free. The victim is sometimes forced to withdraw her complaint, made to file a quashing petition before the High Court and coerced into living with her husband again, probably in the hope that there would be no second innings of harassment. Viewed from any angle, it’s an innings defeat for the victim.

    The Victim wonders and asks very pertinent questions. What are the courts for? Are not the laws and the Penal Provisions meant for punishing the guilty? Why the over eagerness to settle disputes instead of conducting trials?

    Mediation could be used to settle civil disputes and matrimonial disputes before the Family Court. To enforce upon parties the mediation route in Criminal Cases even when they do not want to, is travesty of justice.

    Cases that do proceed and come to a probable conclusion, possibly acquitting the accused for want of evidence, do not find their way into the Appellate Court. The victim is left exhausted after several years of hopeless hope and is dependent on the State to find her justice which again, is too much to ask.

    To find justification in the opinion of the Supreme Court, it must be accepted that frivolous cases have increased and there is a need to stem the misuse. This was already remedied and curtailed in Arnesh Kumar vs. State Of Bihar & another wherein the Supreme Court directed the police not to register the F.I.R. immediately on 498A complaints. The police were directed to call the parties, talk to both, ascertain as to the genuineness of the complaint and then proceed. The police were also directed not to arrest aged in-laws. This process is, with my limited knowledge, followed by most Police Stations.

    It isn’t as easy to register an F.I.R. U/S 498A today as it was several years ago. Therefore, there seemed no need for a new system to be brought in which would lead to emanation of stench from various levels of corruption, influence and red tape. For a victim to wait for a month, expecting a positive report from the committee, then from the Legal Services Authority, then deflated and broken from within about the negative result and then what? Where is she to go?

    The need of the hour is to have separate Courts for such cases. Though the same was to be implemented, all Magistrates dealing with 498A matters or Domestic Violence matters are overburdened with other criminal cases. In view of the acute shortage of Judges and Courts, the pile up is imminent, leading to the complainants being pressurized into settlements.

    If the cases are determined within three to six months, neither the complainant nor the accused would be harassed or affected by the case. It is the inordinate delay that creates the problem. Accused husbands are infamous for ridiculing their wives when the matter is pending in Court. They mock at them stating statistics reflect only 2% conviction and that they would be acquitted. The abysmal conviction rate is due to the poor recording of the statements, poor manner of conducting the trial, enforced settlements, ill-treatment of victims in court premises, excessive and unwarranted length of time to conclude a trial. It is definitely not due to the innocence of the Accused.

    Drawing a parallel, the RTE Act was enacted to give the lesser privileged children, an opportunity to study in good private schools. Instead of ensuring what is a right under the Constitution, by making the Government and Corporation schools function efficiently and bringing middle class children to study in Government schools as opposed to donation seeking private schools, the Act has effectively made all Government schools ineffective, several of them on the verge of closing down. It has instead encouraged corruption of the worst order, seats reserved for children under the Act being sold at atrocious rates to privileged families. Lesser privileged made to cough up amounts by touts and middlemen only to be looked down upon once admitted in a said school.

    Sometimes, in order to set right something wrong, inadvertently it goes from bad to worse. If ever there was a case in need of urgent redetermination, then this case is that case.

    Mrs Lakshmy Iyengar is an advocate in the High Court of Karnataka and Supreme Court of India and the  proprietor of Lakshmy Iyengar & Associates.

    [The opinions expressed in this article are the personal opinions of the author. The facts and opinions appearing in the article do not reflect the views of LiveLaw and LiveLaw does not assume any responsibility or liability for the same] 
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