Allahabad HC: No arrest to be made before the expiry of two-month ‘cooling period’ in cases of marital discord

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Section 498 (A) of IPC gives provision for cruelty to woman by her husband or relatives. It reads as:

Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine.

Explanation. — For the purposes of this section, “cruelty means”—

(a) any wilful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman; or

(b) harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand

The offence committed under Section 498 (A) is non-compoundable and non-bailable. It also is a cognizable offence, i.e., the police have the authority to make an arrest without warrant.

This section of the Penal Code recognizes domestic violence against a woman as a crime. There are certain essential ingredients which needs to be fulfilled to attract the provisions of this section; it includes:

1. The woman should be married;
2. She must be subjected to cruelty and harassment; and
3. Such cruelty or harassment must have been inflicted upon her by her husband or by the relative of her husband.

This section also highlights that the word ‘cruelty’ covers the following acts within its scope:

1. any wilful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or
2. any wilful act which is likely to cause harm to health (whether mental or physical) of the woman; or
3. harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand.

The punishment for offence under this section is imprisonment for a term which may extent to three years and fine.

Though this section was introduced with the idea of protecting women against cruelty, harassment and other offences, but, recently, the misuse of section 498 (A) has increased. The Supreme Court in Preeti Gupta v. State of Jharkhand observed that as serious relook of the provision is warranted by the Legislature and said “it is a matter of common knowledge that exaggerated versions of the incidents are rifled in a large number of complaints.”

Due to the false accusations made by a woman under section 498 (A), the innocent, i.e., husband and his family have to suffer exponentially. There have been cases where the husband or his family members have committed suicide due to the immoral exercise of section 498 (A).

Looking at this situation, Allahabad High Court gave a landmark decision whereby it stated the following:

“assessing the totality of the circumstances, object and the allegation of misuse of this piece of legislation in a shape of Section 498A IPC, the Court is proposing the safeguards after taking the guidance from the judgment of Hon’ble the Apex Court in the case of Social Action Forum for Manav Adhikar Vs. Union of India keeping in view the growing tendency in the masses to nail the husband and all family members by a general and sweeping allegations.

Thus, It is directed that: –

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 Family Welfare Committee (hereinafter referred to as FWC) in each district.
2. 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.
3. 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 district.
4. 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.
5. The said FWC shall comprise of the following members: –
   • 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 N.L.Us. having good academic track record and who is public spirited young man, OR;
   • well acclaimed and recognized social worker of that district having clean antecedent, OR;
   • retired judicial officers residing in or nearby district, who can devote time for the object of the proceeding OR;
   • educated wives of senior judicial or administrative officers of the district.
6. The member of the FWC shall never be called as a witness.
7. 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.
8. The Committee after having proper deliberations, would prepare a vivid report and would refer to the concerned Magistrate/police authorities to whom such complaints are being lodged after expiry of two months by inserting all factual aspects and their opinion in the matter.
9. 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 shall continue to have a peripheral investigation into the matter namely preparing a medical report, injury report, the statements of witnesses.
10. The said report given by the Committee shall be under the consideration of I.O. 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.
11. 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 week).
12.  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.
13. 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.
14. 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. At the cost of repetition, 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 in order to derail the proceedings before the Family Welfare Committee.”

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