In a historic order passed on June 13, 2022, the Allahabad High Court has called out the misuse of Section 498-A by wives and thus, through its guidelines, the High Court has put in certain safeguards with regards to arrests of husbands and their families.
The High Court was hearing a matrimonial matter where it was compelled to remark how there was a growing tendency to nail the husband and his family members by way of general and sweeping allegations.
Shivangi Bansal got married to Sahib Bansal in December 2015 according to Hindu rites and rituals. There were several misunderstandings from day one, and thorough incompatibility and discord between husband and wife.
Allegations by Wife:
- Parent spent about Rs 2 crores in cash, jewellery, clothing, utensils, furniture and other gifts worth Rs 50 lakh
- All the five members of husband’s family, including husband, were not happy by the aforesaid dowry and were demanding Rs 20 lakh more as additional dowry which later on swelled to the figure of Rs 50 lakh
- Father-in-Law Mukesh Bansal wanted to have sexual favours from son’s wife
- Brother-in-law (devar) Chirag Bansal also tried to ravish her physically
- Husband used to lock her in the bathroom after taking away her mobile phone
- When wife got pregnant, her in-laws asked some astronomer to predict the sex of ‘unborn’ baby
- Mother-in-Law and Sister-in-Law pressurised her to get the child aborted
- When she refused all the family members started beating her
- While wife was pregnant, husband tried to establish sexual relationship with her by force
- Husband also tried to have unnatural and oral sex and even, pissed in wife’s mouth
- There was constant demand of additional dowry and on refusal by the wife to oblige them, she was assaulted brutally by fists and kicks, and maltreated and humiliated to its optimum
- Husband attempted to strangulate wife with her ‘chunni‘ and to further humiliate her, got her head into the commode of the toilet
Thereafter, the wife called Mahila Police in October 2018 and returned to her parental home at Hapur.
FIR Lodged By Wife
Subsequently, the wife lodged an FIR against her husband, his parents, brother-in-law and sister-in-law for the offences of cruelty, intentional insult, criminal intimidation, attempt to murder and offences under the Dowry Prohibition Act.
Learned counsel for the husband pointed out records of the first call made by the wife at the police station. The counsel pointed to the statement made by wife to the police,
I do not want to live with him(husband). I am not physically hurt. I am not going for medical examination.
The counsel alleged that despite all allegations of marpeet, she has made a candid statement that she was not physically assaulted, therefore, did not consent to undergo any medical examination. He further alleged that on the same date, husband had shared his detailed explanation with the police how his wife was exploiting the ugly situation, while she was demanding Rs 5 crore as settlement.
Allahabad High Court
Justice Rahul Chaturvedi heard the matter in detail from both sides. After analysing evidences on record, the Court condemned the nature and language of the allegations made by the wife while opining that she exaggerated the incident manifold and had “vomited snide before the court”. The High Court observed,
The graphic and vivid descriptions of the incident without any shame or hitch of any sort which, speaks out volume of mental condition and amount of venom and poison in the mind of the informant.
Taking into account statements of the wife, her refusal to undergo medical examination claiming she was not physically hurt, the Court also said that it was a prevailing practice nowadays in cases of matrimonial discord to file abhorrent FIRs, and this one too appeared to be a repetition of that practice.
The Allahabad High Court also noted that apart from a bruise on the neck, which indicated that the husband tried to strangle her, she had no vital injuries.
On examining the evidence, the Court found that the FIR was nothing but a virtual canard full of venom where the informant, unmindful of its far-reaching repercussions, had pasted filth on revisionist in a wild manner but was unable to produce any documentary evidence to substantiate the allegations. The Court added,
Her psyche and amount of venom in the mind of the informant goes to show that in order to take revenge from her husband and in-laws, she has gone to any extent, crossing all the limits of decency.
Sexual Assault Charges Against Father-in-Law & Brother-in-Law
While discussing the allegations against the father and brother-in-law, the court opined that in traditional Indian families, it was highly improbable and thus, difficult to digest the allegations of them demanding sexual favours from from the daughter-in-law. The order read,
In our traditional Indian family, where they are residing in a joint family with unmarried son, it is highly improbable and difficult to digest the allegations of demanding sexual favours from her daughter-in-law by father-in-law or brother-in-law,.
The Allahabad High Court has restricted arrested after the registration of FIR for first two months. The order reads,
No arrest or coercive action should be taken against the accused for two months, and during this period the issue would have to be referred to a Family Welfare Committee (FWC).
It is made clear that after lodging of the F.I.R. or the complaint case without exhausting the “Cooling-Period” of two months, no arrest or any coercive action shall be taken against the husband or his family members.
The Court directed the establishment of FWCs and stated that they should be made operational within the next three months. The Court made it clear,
Only those cases which would be transmitted to FWC in which Section 498-A IPC along with, no injury 307 and other sections of the IPC in which the imprisonment is less than 10 years.
Role Of Matrimonial Advocates
Justice Chaturvedi also discussed the role of advocates while dealing with matrimonial matters. Attention was drawn to the FIR in the case which was categorised as ever-abhorring, full of dirt and filth by the judge. The Judge expressed,
The graphical description portrayed by her in her FIR is deplorable to be condemned in its strongest terms. It is not soft porn literature where the graphical description should be made.
In this regard, the court decided to ignore the graphic and distressful allegations made by the wife on receiving legal advice. The order read,
The Court records its strongest exception to such type of language used by the informant. The language of the FIR should be decent one and no amount of atrocities faced by the informant, would justify her to use such type of castic expressions.
Therefore, the High Court thus allowed revision petitions by the in-laws. The revision plea moved by the husband, however, was rejected.
MISUSE OF 498-A & DIRECTIONS
Regarding the misuse of Section 498-A, the Court opined that the traditional fragrance of our age-old institution of marriage would completely evaporate if such gross and unmindful misuse would continue.
Hence, the Court proceeded to issue the following directions:
- No arrest or police action to nab the named accused persons shall be made after lodging of the FIR or complaints without concluding the “Cooling-Period” which is two months from the lodging of the FIR or the complaint. During this “Cooling-Period”, the matter would be immediately referred to FWC in the each district;
- Only those cases which would be transmitted to FWC in which Section 498-A IPC along with, no injury 307 and other sections of the IPC in which the imprisonment is less than 10 years;
- After lodging of the complaint or the FIR, no action should take place without concluding the “Cooling-Period” of two months. During this “Cooling-Period”, the matter may be referred to Family Welfare Committee in each districts;
- Every district shall have at least one or more FWC (depending upon the geographical size and population of that district constituted under the District Legal Aid Services Authority) comprising of at least THREE MEMBERS. Its constitution and function shall be reviewed (25) periodically by the District & Sessions Judge/Principal Judge, Family Court of that District, who shall be the Chairperson or Co-chairperson of that district at Legal Service Authority;
- The said FWC shall comprise of the following members :- (a) a young mediator from the Mediation Centre of the district or young advocate having the practices up to five years or senior most student of Vth year, Government Law College or the State University or NLUs having good academic track record and who is public spirited young man, or; (b) well acclaimed and recognized social worker of that district having clean antecedant, or; (c) retired judicial officers residing in or nearby district, who can devote time for the object of the proceeding or; (d) educated wives of senior judicial or administrative officers of the district.
- The member of the FWC shall never be called as a witness;
- Every complaint or application under Section 498A IPC and other allied sections mentioned above, be immediately referred to Family Welfare Committee by the concerned Magistrate. After receiving the said complaint or FIR, the Committee shall summon the contesting parties along with their four senior elderly persons to have personal interaction and would try to settle down the issue/misgivings between them within a period of two months from its lodging. The contesting parties are obliged to appear before the Committee with their four elderly persons (maximum) to have a serious deliberation between them with the aid of members of the Committee;
- The Committee after having proper deliberations, would prepare a vivid report and would refer to the concerned Magistrate/police authorties to whom such complaints are being lodged after expiry of two months by inserting all factual aspects and their opinion in the matter;
- Continue deliberation before the Committee, the police officers shall themselves to avoid any arrest or any coercive action pursuant to the applications or complaint against the named accused persons. However, the Investigating Officer (IO) shall continue to have a peripheral investigation into the matter namely preparing a medical report, injury report, the statements of witnesses;
- The said report given by the Committee shall be under the consideration of IO or the Magistrate on its own merit and thereafter suitable action should be taken by them as per the provision of Code of Criminal Procedure after expiry of the “Cooling-Period” of two months;
- Legal Services Aid Committee shall impart such basic training as may be considered necessary to the members of Family Welfare Committee from time to time(not more than one (26) week);
- Since, this is noble work to cure abrasions in the society where tempos of the contesting parties are very high that they would mellow down the heat between them and try to resolve the misgivings and misunderstanding between them. Since, this is a job for public at large, social work, they are acting on a pro bono basis or basic minimum honorarium as fixed by the District & Sessions Judge of every district;
- The investigation of such FIRs or complaint containing Section 498A IPC and other allied sections as mentioned above, shall be investigated by dynamic Investigating Officers whose integrity is certified after specialized training not less than one week to handle and investigate such matrimonial cases with utmost sincerity and transparency.
- When settlement is reached between the parties, it would be open for the District & Sessions Judge and other senior judicial officers nominated by him in the district to dispose of the proceedings including closing of the criminal case.
READ ORDER | No Arrests For Two Months After Registration Of FIR By Wife: Allahabad High Court On Misuse Of IPC #498A— Voice For Men India (@voiceformenind) June 14, 2022
▪️HC: "Graphical description portrayed by Wife is deplorable. FIR is not soft porn literature"@narendramodi @AmitShah @KirenRijiju https://t.co/co691eJva7
Marital Rape Verdict | Advocate J Sai Deepak | Other Side
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