NFHS reply on Consultation Paper-cum-Questionnaire regarding 498A IPC
26th February 2011 / Bangalore
Shri Justice Shiv Kumar Sharma
Member, Law Commission of India,
The Indian Law Institute Building
(Opp. to Supreme Court), Bhagwandas Road, New Delhi – 110001
Subject: NFHS reply on Consultation Paper-cum-Questionnaire regarding Section 498-A of Indian Penal Code
About National Family Harmony Society®: “National Family Harmony Society®” NFHS is a Non Governmental Organization (NGO) promoting the cause of “family harmony” and “gender equality”. It is registered under “The Karnataka Societies Registration Act, 1960” and is based in Bangalore. We have branches in more than 16 states and in abroad too. We have approximately 14500 members all over India. To know more about us please visit http://www.family-harmony.org / www.498a.org.in.
1) a) What according to you is ideally expected of Police, on receiving the FIR alleging an offence u/s 498A of IPC? What should be their approach and plan of action?
Once a complaint is received under 498A IPC police must not act in hurry. The police force is normally trained to deal with offences which are criminal in nature. They need to keep in mind that this complaint even though is categorised in the IPC but is still basically it is a dispute pertaining to husband and wife and is matrimonial dispute in nature. Any action by the police in haste or in hurry in making any attempt to arrest to husband or those named in the FIR will close all the ways of a possible reconciliation between the couple. Hence we suggest that as soon as a complaint is received at the police station immediately police must send the couple to Government Mediation Centre to explore the possibility of reconciliation.
b) Do you think that justice will be better meted out to the aggrieved woman by the immediate arrest and custodial interrogation of the husband and his relations named in the FIR? Would the objective of s.498A be better served thereby?
Immediate arrest and custodial interrogation of the husband and his relatives means nothing but breaking of another family. No husband will ever take back his wife after arrest and custodial interrogation by police. Husbands who approach our NGO categorically state that they prefer to go to jail rather than taking back their wife after suffering the humiliation of arrest and police interrogation.
2) a) The Supreme Court laid down in D.K. Basu (1996) and other cases that the power of arrest without warrant ought not to be resorted to in a routine manner and that the Police officer should be reasonably satisfied about a person’s complicity as well as the need to effect arrest. Don’t you agree that this rule applies with greater force in a situation of matrimonial discord and the police are expected to act more discreetly and cautiously before taking the drastic step of arrest?
In fact as a rule police must not arrest anyone in the complaint u/s 498A IPC as not only the complaint is of matrimonial in nature but also there are high chances that it could be a false complaint and the allegations could be exaggerated and colourful version of the actual. Most of the time it has been found that the complaint is registered as a counterblast to the divorce/RCR filed by husband and is an afterthought.
b) What steps should be taken to check indiscriminate and unwarranted arrests?
498A must be made bailable with immediate effect to curb the power of the police. Almost all the DGPs had issued circulars and guidelines regarding 498A IPC. Police must follow them strictly.
3) Do you think that making the offence bailable is the proper solution to the problem? Will it be counter-productive?
Yes, 498A must be made bailable and that is the answer to curb the heavy misuse of 498A IPC.
4) There is a view point supported by certain observations in the courts’ judgments that before effecting arrest in cases of this nature, the proper course would be to try the process of reconciliation by counselling both sides. In other words, the possibility of exploring reconciliation at the outset should precede punitive measures. Do you agree that the conciliation should be the first step, having regard to the nature and dimension of the problem? If so, how best the conciliation process could be completed with utmost expedition? Should there be a time-limit beyond which the police shall be free to act without waiting for the outcome of conciliation process?
Yes, the couple must be sent to the Government appointed counselling centres immediately with a possible time frame of 3 months. Registration of FIR u/s 498A IPC means breaking of another family.
5) Though the Police may tender appropriate advice initially and facilitate reconciliation process, the preponderance of view is that the Police should not get involved in the actual process and their role should be that of observer at that stage? Do you have a different view?
The normal tendency of the police is to call the husband and his family members and threaten them with criminal case. The police use the same language which they use against the criminals to the husband and his family members. The role of the police should be as far eliminated in the matrimonial disputes.
6) a) In the absence of consensus as to mediators, who will be ideally suited to act as mediators/conciliators – the friends or elders known to both the parties or professional counsellors (who may be part of NGOs), lady and men lawyers who volunteer to act in such matters, a Committee of respected/retired persons of the locality or the Legal Services Authority of the District?
Normally Government appointed mediation/Counselling centres will be ideally suited to counsel the parties.
b) How to ensure that the officers in charge of police stations can easily identify and contact those who are well suited to conciliate or mediate, especially having regard to the fact that professional and competent counsellors may not be available at all places and any delay in initiating the process will lead to further complications?
Normally all major tier1 and tier2 cities have such centres. In the absence of such centres in a city the couple can be sent to the nearest cities. The DGP of the particular state can frame guidelines and issue circular to all the SHO’s of his state about do’s and dont’s in such cases.
7) a) Do you think that on receipt of complaint under S.498A, immediate steps should be taken by the Police to facilitate an application being filed before the Judicial Magistrate under the PDV Act so that the Magistrate can set in motion the process of counseling/conciliation, apart from according interim protection?
There is no need for it. The police itself can be issued instruction/circular to send the parties to the counseling/mediation centers. PDV Act is for such wife’s who had undergone violence at the hands of their husband. If the complaint received at the police station is false one then if another application is filed before magistrate then it will amount to filing of another false complaint.
b) Should the Police in the meanwhile be left free to arrest the accused without the permission of the Magistrate?
As we had mentioned earlier that power of the police to arrest accused in case of a complaint u/s 498A IPC has to be completely eliminated.
c) Should the investigation be kept in abeyance till the conciliation process initiated by the Magistrate is completed?
The police should wait for the report from the counseling centre. If it is found during the counseling that the complaint has been found to be a false one and there are no evidence of torture then police should close the case.
8) Do you think that the offence should be made compoundable (with the permission of court)? Are there any particular reasons not to make it compoundable?
Once a complaint is registered then the complainant should not have the option to withdraw it. If the complainant is allowed to withdraw the complaint then it amounts to blackmailing. Anyone with intention to extract money from husband will file complaint in police station and withdraw later when her demands are met. 498A must not be allowed to be used as a blackmail tool. Hence we strongly oppose to make it compoundable.
9) Do you consider it just and proper to differentiate the husband from the other accused in providing for bail? No
10) a) Do you envisage a better and more extensive role to be played by Legal Services Authorities (LSAs) at Taluka and District levels in relation to s.498A cases and for facilitating amicable settlement? Is there a need for better coordination between LSAs and police stations?
Yes, LSA’s can play a better role but in reconciliation and not in settlement. We need to understand that the meaning of reconciliation and settlement are different. 498A should not be used as a settlement tool to extract money and meet demand of the complainant.
b) Do you think that aggrieved women have easy access to LSAs at the grassroot level and get proper guidance and help from them at the pre-complaint and subsequent stages?
c)Are the Mediation Centres in some States well equipped and better suited to attend to the cases related to S,498-A?
11) What measures do you suggest to spread awareness of the protective penal provisions and civil rights available to women in rural areas especially among the poorer sections of people?
We feel that there is a need to spread awareness about heavy misuse of 498A IPC and the consequences. If the message reaches to the large section of the society that once a false complaint is lodged then it is the end of the road for the couple then many such false complaints will not be lodged. Now in the present situation whenever there is a misunderstanding between the couple then there is a tendency to rush to the police station and lodge a complaint under misguidance.
12) Do you have any information about the number of and conditions in shelter homes which are required to be set up under PDV Act to help the aggrieved women who after lodging the complaint do not wish to stay at marital home or there is none to look after them?
Government must set up shelter homes for women under DV Act and it must be made mandatory for the complainant to reside there.
13) What according to you is the main reason for low conviction rate in the prosecutions u/s 498A?
The conviction rate in 498A IPC is very low as the complaints which are given are not true and most of the time they are colourful and the exaggerated version. Hence they fail in the court of law.
14) (a) Is it desirable to have a Crime Against Women Cell (CWC) in every district to deal exclusively with the crimes such as S.498A? If so, what should be its composition and the qualifications of women police deployed in such a cell?
All major cities have women police station and all states have State Women Commissions who can entertain complaint from women hence there is no need to setup CWC.
(b) As the present experience shows, it is likely that wherever a CWC is set up, there may be substantial number of unfilled vacancies and the personnel may not have undergone the requisite training. In this situation, whether it would be advisable to entrust the investigation etc. to CWC to the exclusion of the jurisdictional Police Station?
There is no need to duplicate authorities as it will lead to further complications. The procedure has to be kept simple for the benefit of everyone. The complaint can be lodged with police and they have to sent it mandatory to counselling centre and then wait for their report.
P Suresh, President,
National Family Harmony Society