[Misuse of Section 498A] No arrests for two months after registration of FIR: Allahabad High Court issues safeguards

In an order of significant import, the Allahabad High Court on Monday issued safeguards to prevent the misuse of Section 498A of the Indian Penal Code (IPC), in light of the growing tendency to nail the husband and his family members by way of general and sweeping allegations [Mukesh Bansal v State of UP]..Justice Rahul Chaturvedi ordered that after the registration of a First Information Report (FIR) under the provision, 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 order said. The Court directed the establishment of FWCs and stated that they should be made operational within the next three months."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," the Court made it clear..The single-judge was hearing revision petitions by three persons against an order of the session court rejecting their discharge applications..An FIR had been lodged by the wife against her husband and in-laws for the offences of cruelty, intentional insult, criminal intimidation, attempt to murder and offences under the Dowry Prohibition Act. The wife claimed that she was being pressured for more dowry, her father-in-law and brother-in-law sought sexual favors from her, she used to be locked in the bathroom by her husband, they pressured her to abort a pregnancy and her husband attempted to have unnatural sex with her. .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 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," the Court stated. The Court opined that it is 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 Court also took into account a candid statement made by the wife in her application, refusing medical examination as she was not physically hurt. It was also noted that apart 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. "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," the Court said..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."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 order read..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 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," the Court underscored..In this regard, the court decided to ignore the graphic and distressful allegations made by the wife on receiving legal advice. "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," the order said..Therefore, the revision petitions by the in-laws were allowed. The revision plea moved by the husband, however, was rejected. .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:.(i) 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;(ii) 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;(iii) 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;(iv) 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; (v) 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. (vi) The member of the FWC shall never be called as a witness; (vii) 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;(viii) 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; (ix) 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; (x) 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;(xi) 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); (xii) 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; (xiii) 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. (xiv) 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..Advocates Rajeev Nayan Singh, Ritukar Gupta and Senior Advocate Vinod Prakash Srivastava appeared for the revisionists while the state was represented by government advocate Raj Kumar Kesari..[Read Order]