State Action Forum for Manav Adhikar
Union of India
Women have been subjected to violence, hatred from time immemorial, and the patriarchal society doesn’t consider man as accuser, but now the time has changed, and the law has evolved. It considered women equal to men, and the same is enshrined in Article 14 of the Indian Constitution. Domestic violence is one of the major concerns for women as it is a barbaric act to torture a woman for dowry or any other thing; the same is an offense in Section 438 A of IPC, which was put into effect form 1983.
Case No.- Writ petition (civil) no. 73 of 2015
Petitioner- Social action forum for Manav Adhikar and another
Respondent- Union of India Ministry of Law and Justice and ors
A petition was filed to SC to curb domestic violence in India, but the SC of India in case Rajesh Sharma examined the situation and the culpability of the offense., further issued guidelines to tackle the same. It was contended by the petitioner that the above mention Section had lost its importance due to the subjectivity show by the judiciary, and the legislative intent for 438 A has been diluted due to the absence of any uniform system of monitoring. The deterrence of this Section is lost because of the restriction and limitation imposed by the judiciary in the aforesaid case. The court also suggests constituting a family welfare Committee which was not mentioned in the statutory framework. The court further directed the board that the investigating officer must be given training related to arrest.
A petition was filled in the SC under Article 32 of the Indian Constitution seeking to create a harmonious environment to encourage women to raise their voice against cruelty and create systematic monitoring of incident of violence against women also enable them to hold custody of their child during the process of investigation and to be provided with security during and after investigation for a reasonable period of time. The petitioner further argued that to issue the writ of Mandamus and fast track process of registering the case to Fir and the bail in the offense shall not be easy. The deterrence of the 438 A was lost somewhere after the court in Rajesh Sharma and others v. State of UP and another issued guideline to check the alleged tendency of the women and no arrest shall be made before the report of the commission, and when the settlement is reached between the parties in the court, the judge can dispose of the case if he finds the dispute regarding a matrimonial accord
Whether the Court in Rajesh Sharma case could, by the method of interpretation, have issued such directions?
Argument of Petitioner
The social purpose of 438 A has been lost after the court diluted the provision by making it a bailable offense and imposed several restrictions, and the legislative intent has been lost due to the unavailability of uniform Systems in monitoring and systematic review of an incident of violence against women. The court imposed restriction due to the misuse of the provision, but it is not backed by any data to prove the same moreover an issue can’t be a ground to impose a restriction, mental injury is not considered by the court during the trial
Argument of Defendant
The provision is used as a weapon rather than a shield as the court held in Arnesh Kumar v. the State of Bihar and another). The simplest way to harass the groom’s family is to blackmail them to file a complaint under 438 A, which is against the spirit of law Power to Arrest is one of the lucrative sources of police misconduct, and is commonly viewed as an instrument of abuse and oppression. The mindset is first to detain and then to carry on with the rest. That is disgusting and needs to be regulated. Crime in India 2012 Statistics released by the National Crime Records Bureau, Ministry of Home Affairs, showing the arrest of 1,97,762 people in India in 2012 for the Section 498-A offense.
With regard to the question as to whether the instructions, as in the case of Rajesh Sharma, might have been issued by the interpretation process, the court examined the fact that, in the furtherance of a fundamental right, the judiciary in some cases, namely Vishaka & Ors v. State of Rajasthan and others, Lakshmi Kant Pandey v. Union of India had given instructions in the absence of law.
It is not under the authority of the courts to examine whether a particular public policy is wise and appropriate. The court can only intervene if the policy framed is totally capricious or uninformed by reason or entirely arbitrary, violating the fundamental provision of Art 14 (Census Commissioner and others v. R. Krishnamurthy). In addition, it was held that no court might order a legislature to pass a particular law (Suresh Seth v. Commissioner, Indore Municipal Organization, and others). T was also of the opinion that, in its wisdom, the legislature made the crime under Sec 498-A cognizable and unrecognizable, the blame lies with the investigative agency, which springs into action without any application of its mind. When considering the judgment in Lalita Kumari v. State of Uttar Pradesh, the court claimed that it was very vivid that the Constitution Bench had not indicated that preliminary inquiry could be undertaken in matrimonial / family disputes. Based on the above judgments and considerations, the court ruled that the directives of the Family Welfare Committee and its creation by the District Legal Services Authority and the power vested on the Committee were unfair.
In the case, the Supreme Court had, inter alia, directed the District Legal Services Authority to create family welfare committees in each district to investigate any complaint filed in the district pursuant to Section 498A. In the case, the court further directed that no arrest shall be made in the case unless the report of the Committee is received. The Prosecuting Officer or the Magistrate will then find the paper. The court also claimed that, in cases where a settlement has been reached, it would be open to the District and Sessions Judge or any other senior judicial officer to dispose of the proceedings, including the termination of the criminal case, if the proceedings were challenged regarding a matrimonial dispute Here it would be important to point out that in the case of Rajesh Sharma, the Supreme Court had given guidelines to prevent alleged misuse of Section 498A. The core problem posed in the appeal related to the need to check the alleged propensity of a woman lodging a complaint under Section 498A to rope in all family members in settlement of marital disputes.
 AIR 1975 All 386.
 AIR 1997 SC 3011.
 1984 AIR 469.
 (2018) 10 SCC 437.
 AIR 2004 SC 9444.
 1973) 1 SCC 216.