498a Law Changes - New Phase of 498a | Shonee Kapoor

New Phase of 498a

Hon’ble Supreme Court came up with new guidelines on 498A (Husband or relative of husband of a woman subjecting her to cruelty: Proposed Section 84 of The Bharatiya Nyaya Sanhita, 2023) cases and the same has been the talk of the town since morning. Different people comment on it in various ways. Few media houses have even run flash news like “Husbands to be immediately arrested in case of 498A (Husband or relative of husband of a woman subjecting her to cruelty: Proposed Section 84 of The Bharatiya Nyaya Sanhita, 2023)”. Such views are erroneous.

498a Law Changes: Let’s look at the background of the judgment titled “Social Action Forum for Manav Adhikar and another Versus Union of India and others”. The NGO challenged various decisions of the Supreme Court and High Courts by writ of mandamus, which had diluted the provisions of 498A (Husband or relative of husband of a woman subjecting her to cruelty: Proposed Section 84 of The Bharatiya Nyaya Sanhita, 2023). It wanted a uniform policy of registration of FIR, arrest and bail in cases of Section 498A IPC (Husband or relative of husband of a woman subjecting her to cruelty: Proposed Section 84 of The Bharatiya Nyaya Sanhita, 2023) by the law of the land, i.e. to register FIR on complaint of cruelty and harassment by married women as per the provisions of IPC and CrPC. The said writ was filed in 2015, and in between, Rajesh Sharma’s judgment was pronounced by another bench of SC.

In the meantime, another NGO filed another Writ Petition challenging the Rajesh Sharma judgment and wanted women NGOs to be part of the Family Welfare Committee. However, the NGO’s plan to percolate the Family Welfare Committees through women NGOs did not pan out. Today, the Apex Court bench headed by CJI Deepak Misra abolished the Family Welfare Committees.

Ever since the passage of 498A (Husband or relative of husband of a woman subjecting her to cruelty: Proposed Section 84 of The Bharatiya Nyaya Sanhita, 2023), there have been frequent judgments to curb the misuse of 498A. The current judgment starts from that only. The chief justice, writing on behalf of the complete bench, said in the beginning that despite the misuse being vertically rising, the legislature still needs to bring the remedial protective provisions to curb the misuse. After that, a discussion on the previous judgment and other judgments passed by the Apex Court is conducted to curb misuse of various provisions related to arrest and that of 498A.

After detailed deliberations, the Supreme Court abolished the Family Welfare Committees and tweaked the other directions given in the Rajesh Sharma judgment. Now, let me try to explain what this means to men fighting 498A (Husband or relative of husband of a woman subjecting her to cruelty: Proposed Section 84 of The Bharatiya Nyaya Sanhita, 2023) and other related cases.

1. Following the abolition of Family Welfare Committees, all related directions and rules are now void. This means that no FWC report is necessary before or after an arrest. The power to arrest and the associated procedures remain with the Investigating officer, as granted by the Code of Criminal Procedure in 41 CrPC and 41A CrPC. It’s crucial to understand that the Investigating officer is now solely responsible for these actions.

The said powers u/s 41A CrPC have historically been misused to the hilt of police officials. So much so that they extort a lot of bribes for the same. Many people see it as a revert to Arnesh Kumar’s judgment, and they interpret it as a ban on arrest. In this article, I had previously argued that Arnesh Kumar’s judgment never stopped arrests in 498A (Husband or relative of husband of a woman subjecting her to cruelty: Proposed Section 84 of The Bharatiya Nyaya Sanhita, 2023). It just directed police to comply with provisions of 41A CrPC, which is to give reasons for arrest and bring the same to the magistrate, who would record reasons for further police or judicial custody of the accused. Moreover, the nature of marital disputes has changed over time.

However, the judgment is silent on what happens to any decisions taken by Family Welfare Committees while it existed. All such decisions have become non-est and are now open to challenge. However, as a saving grace, it does not say that an immediate FIR has to be lodged. A preliminary inquiry, however, is not precluded. The same shall continue at the CAW Cell (Crime Against Women Cell) or Mahila Thana, as the case may be.

2. The judgment says that the cases related to Section 498A (Husband or relative of husband of a woman subjecting her to cruelty: Proposed Section 84 of The Bharatiya Nyaya Sanhita, 2023) shall be investigated only by a competent designated officer of the area and the same shall be under the superintendence of senior officer so that investigating officer does not misuse or abuse his powers of arrest.
3. It removes the District and Sessions Judge’s power to close criminal proceedings in case of a settlement. The quashing, if any, can be done by the High Courts according to the powers vested u/s 482 CrPC.
4. It has retained the provisions relating to pre-arrest or Anticipatory Bail conditions. This means that the return of Dowry articles can not be a pre-condition for bail. However, it has also retained the catch of the Rajesh Sharma Judgment. If the husband is not paying maintenance as ordered by any court, the bail may be dismissed.
5. Non-resident Indians facing 498A (Husband or relative of husband of a woman subjecting her to cruelty: Proposed Section 84 of The Bharatiya Nyaya Sanhita, 2023) cases can also breathe easy. The Apex Court, in its wisdom, has kept the provision that Red Corner Notice or Passport impounding shall not be done in a routine matter. That means if the NRI is responding to the summons and is appearing as and when directed, his privilege to travel for work or stay shall not be curtailed.

1. The judgment doesn’t interfere with the clubbing of cases, though it says that the clause about the same, i.e. 19(vi) of the Rajesh Sharma judgment, would be applicable upon application to the competent court.
2. The biggest drawback of this judgment is that exemptions from personal presence, which were routinely given by trial courts, especially for the old and aged members staying far away, under the weight of Rajesh Sharma’s judgment, are now subject to the trial court’s discretion. An application u/s 205 CrPC or u/s 317 CrPC has to be moved, and the court would decide upon the stage at which exemption is sought. Unfortunately, this would mean that long travels would continue for most of the family members.

In summary, the NGOs that applied these writs did not get what they desired. Neither the Apex Court ordered immediate registration of FIRs nor allowed NGOs to percolate into the Family Welfare Committees. The judgment, however, took away a few relaxations accorded to the husband and their family members. Arrests are now at the discretion of Investigating Officers and their superiors, notwithstanding that they would have to follow the conditions of 41A CrPC. Exemptions from personal presence are also at the discretion of the magistrate. Today, the Apex Court lost an opportunity to make this a ‘truly’ Landmark Judgment by not following in its footsteps as it did regarding RTI ACT, Sec 66 A of IT Act, Vishakha Guideline and lately by reading down Sec 377 IPC.

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