[P.S: This may not be a Cyber Law Issue but is a matter of concern to the youth in the IT industry and reflects the personal experience of the undersigned in interacting with several young persons in the IT industry with whom the author interacts as a part of his Cyber law activities. This should also not be considered as anti women …. Naavi]
The recent decision of the three member bench of the Supreme Court holding that there is no need for a Family welfare committee to advise the Police before an arrest can be made under Section 498A may be technically justifiable. But the view of the Supreme Court over turning the earlier decision of a two member bench to meant to prevent abuse of the provisions of the Section 498A and introduce some safety measures is not consistent with the aggressive view taken in respect of other issues such as in the case of Section 377, or even Section 66A of ITA 2000/8.
In the cases of Sec 377 (IPC) or Sec 66A (ITA 2000/8) the Court went ahead with striking down earlier legal provisions and change the law in the Court without waiting for the legislature alone to do it. But when it comes to 498A, it tries to make the Government responsible to change the law. If it can change IPC or ITA 2000/8 in other cases, it is not clear why it cannot change the law in the case of 498A.
Merely making a lofty statement that the Court is aware of the abuse does not suffice to show the concern for justice and fairness which should be the hallmark of the Apex Court.
Making such statements for records but following them with measures to remove the safeguards introduced by another bench of the Supreme Court itself and enhancing the scope of misuse of law is not a welcome development.
Section 498A has been so much abused that it has already dented the confidence of the Indian male on the Indian marriage system. Many young males are refusing to get married because of the “Risk of Marriage”. There are many professional extortionist young girls who use dowry harassment and domestic violence to extract unreasonable damages in cases of normal domestic differences of opinion.
This argument against 498A is not a bias against women because in all the cases of 498A, along with the husbands and the father in law, it is the women in the house like the mother in law or the sister in law who gets dragged into being accused as accomplices. The cases are often propped up not by the wife who may actually want to compromise but by her parents who for their ego try to show their power.
This objection to the supreme court decision should not be confused as reflecting any intention to deny that there is a need to protect women in genuine cases of dowry harassment. There is definitely a need to prevent such harassment and victims do need protection of law.
But there is a need for the law to learn from the past experience and ensure that there is a balance which prevents misuse. Also , it is agreed that divorce may the preferred solution in cases where the boy and the girl have an irretrievable break down of relationship often because of their relationships outside marriage. Hence a forced compromise is not a solution to broken marriages. It can only lead to further domestic violence. Hence divorce requests are to be handled realistically and facilitated. But when it comes to settlement, the Courts should recognize that one of the strong motives for divorce could be the ability of the girl to extract a large compensation. Hence many girls who are financially better than the husband often ending up claiming damages to which they should not be eligible.
The divorces become acrimonious because the girls have the practice of invoking Domestic Violence case complaints as part of every divorce. This should be seriously discouraged.
The Supreme Court bench does not seem to have considered the plight of innocent senior citizens who have been dragged to jail by violent daughter in laws.
If the Supreme Court does not show consistency and uphold justice to common man in every aspect of law whether it is 498A or 66A or 377, it is the reputation of the Court which is in jeopardy.
It is unfortunate that in the Section 498A issue, the Supreme Court has already declared its intention that it prefers to follow it’s own whimsical ways of deciding on different issues, some times being logical and humane and some times adopting a completely irrational approach to problems.
Now the current ruling will only increase corruption in the Police but the damage has already been done. The solution to the problem now lies either with the Government at the Center or in the States.
First and foremost the higher officials of the Police in the States should themselves initiate a proper process to ensure that Section 498A is not used to harass innocents. It should not allow arrests without the intervention of a higher level officer preferably beyond the Station level.
Probably the State Police should create a special committee of police officers to replace the Family welfare committee which was proposed by the earlier Supreme Court which should direct the station level investigating officer if arrest is required or not. I suppose this will be permitted within this judgement.
This could be within the administrative powers of the State police and the political sanction of the State Government. Since the issue is not political, I suppose there should be no problem in the State Governments taking a quick stand in this respect.
The second solution is for the Central Government to move in quickly if required through an ordinance to ensure that the imprisonment provision in Section 498A is softened by reducing the maximum imprisonment to some thing like 3 months and allowing quick bail. It should only be for deterrence.
In case of exceptional cases where there is real harassment leading to a dowry death there are other provisions under which the accused can be punished for life or with death sentence.
While the Supreme Court conveniently says that there are alternate provisions of getting a bail and hence there is no need of the safety clause, the same logic applies to the fact that there are alternative measures to punish the really guilty and there is no need to arrest the poor husbands when his newly wed wife runs away to her parent’s place and launches litigation alleging all kinds of torture on every known relative of the husband when there is no real threat to her. It appears that the judges had not made a proper assessment of such cases before arriving at their current decision.
I hope that the Central Government of Mr Modi and the different State Governments try to address the issue with necessary changes in law to prevent abuse of Section 498A.