No arrest in Section 498A cases for first 2 months: Supreme Court revives Allahabad HC directives in matrimonial cases

The Supreme Court on Tuesday ordered implementation of Allahabad High Court’s 2022 guidelines that restrain police authorities from taking any action, including arrest, during a “cooling-period” of two months in matrimonial cruelty cases [Shivangi Bansal versus Sahib Bansal].

As per the guidelines, the cases registered under Section 498A of Indian Penal Code (IPC) should be referred to the Family Welfare Committee (FWC) of the concerned district for settlement of the issues, with the police not taking any coercive action for the first two months.

The Bench of Chief Justice of India (CJI) BR Gavai and Justice Augustine George Masih made the guidelines operative across India.

“The guidelines framed by the High Court of Allahabad in the impugned judgment dated 13.06.2022 in Criminal Revision No. 1126 of 2022 vide paras 32 to 38, with regard to ‘Constitution of Family Welfare Committees for safeguards regarding misuse of Section 498A, IPC shall remain in effect and be implemented by the appropriate authorities,” the top court ordered.  

The guidelines issued by the Allahabad High Court were based on a 2017 verdict in Rajesh Sharma & Ors vs State of UP and Anr.

Interestingly, the same were modified and withdrawn later by the Supreme Court in 2018 by way of a judgment passed in Social Action Forum for Manav Adhikar Vs. Union of India, making FWCs non-functional.

However, with yesterday's verdict, the following guidelines issued by the Allahabad High Court now stand revived:

1. 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 the FWC in each district.

2. Only those cases 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."

3. 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 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.

4. 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 antecedent, 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.

5. Every complaint or application under Section 498A IPC and other allied sections mentioned above, should be immediately referred to the FWC by the concerned Magistrate. After receiving the said complaint or FIR, the FWC 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.

6. The report given by the FWC shall be under the consideration of investigating officer 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

7. 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.

The top court issued the direction while dealing with a matrimonial dispute case in which the couple had registered multiple cases against each other. The husband had remained in jail for 109 days and his father for 103 days, in the cases registered by his wife.

In a rare direction, the Supreme Court ordered the wife and her family to tender an unconditional apology in a newspaper for the trauma and harassment suffered by them.

“Such apology shall also be published and circulated on all social media platforms like Facebook, Instagram, YouTube and other similar platforms. The expression of apology herein shall not be construed as an admission of liability and shall have no bearing on the legal rights, obligations, or consequences arising under law,” the Court ordered.

Considering the directions and settlement between the parties, the Court quashed the criminal cases and also dissolved the couple’s marriage, while invoking its powers under Article 142 of the Constitution of India.

[Read Supreme Court Judgment]

[Read Allahabad High Court Judgment]