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SUPREME COURT OF INDIA
Dipak Misra, CJI., A.M. Khanwilkar, D.Y. Chandrachud, JJ.
Social Action Forum for Manav Adhikar and another – Petitioner(s)
VERSUS
Union of India Ministry of Law and Justice and others – Respondent(s)
WRIT PETITION (CIVIL) NO. 73 OF 2015 WITH CRIMINAL APPEAL NO. 1265 OF 2017 WRIT PETITION (CRIMINAL) NO. 156 of 2017
Decided On : 14-09-2018
(2005) 6 SCC 281 : AIR 2005 SC 3100; (2003) 4 SCC 675 : AIR 2003 SC 1386; (1989) 2 SCR 612; AIR 2017 SC 3869 : 2017 (8) SCALE 313; (2014) 8 SCC 273; (1994) 4 SCC 260; (1997) 1 SCC 416; (1993) 2 SCC 746; (1995) 4 SCC 262; (2014) 2 SCC 1 – Relied upon
AIR 2017 SC 3869 : 2017 (8) SCALE 313 – Referred
(b) Administration of justice – Judicial intervention – Permissible in furtherance of fundamental rights in absence of a law. (Para 35)
(1984) 2 SCC 244; (1997) 6 SCC 241; (2018) 5 SCC 1 – Relied upon
(c) Indian Penal Code, 1860 – Section 488-A – Interpretation of judgment – Certain directions in Rajesh Sharma held erroneous like constitution of committees – Directions pertaining to Red Corner Notice, clubbing of cases and postulating that recovery of disputed dowry items may not by itself be a ground for denial of bail held not discordant with the Code – Direction Nos. 19(iv) and (v) held not erroneous – Some of the directions have the potential to enter into the legislative field – Directions pertaining to Family Welfare Committee and its constitution by the District Legal Services Authority and the power conferred on the Committee held impermissible. (Para 35, 36, 38)
(2005) 13 SCC 287; (2015) 2 SCC 796; (2004) 9 SCC 362; (1970) 1 SCC 248; (1994) 2 SCC 691; (1997) 7 SCC 592; (2011) 7 SCC 639; (1998) 4 SCC 117 – Relied upon
Facts of the case:
The instant Petitions have been preferred under Article 32 of the Constitution of India seeking directions to the respondents to create an enabling environment for married women subjected to cruelty to make informed choices and to create a uniform system of monitoring and systematically reviewing incidents of violence against women under Section 498-A IPC including their prevention, investigation, prosecution and rehabilitation of the victims and their children at the Central, State and District levels. That apart, prayer has been made to issue a writ of mandamus to the respondents for a uniform policy of registration of FIR, arrest and bail in cases of Section 498-A IPC in consonance with the law of the land, i.e., to immediately register FIR on complaint of cruelty and harassment by married women as per the IPC.
Finding of the Court:
Certain directions in Rajesh Sharma are not correct and need modification.
Result: Writ petitions and criminal appeal disposed of.
Key Points: - (!) - (!) - (!) - (!) - (!) - (!) - (!) - (!) - (!) - (!)
JUDGMENT
Dipak Misra, CJI
Law, especially the criminal law, intends to control, if not altogether remove, the malady that gets into the spine of the society and gradually corrodes the marrows of the vertebrae of a large section of the society. A situation arises and the legislature, expressing its concern and responsibility, adds a new penal provision with the intention to achieve the requisite result. When a sensitive legal provision is brought into the statute book, the victims of the crime feel adequately safe, and if the said provision pertains to matrimonial sphere, both the parties, namely, wife and husband or any one from the side of the husband is booked for the offence and both the sides play the victim card. The accused persons, while asserting as victims, exposit grave concern and the situation of harassment is built with enormous anxiety and accentuated vigour. It is propounded in a court of law that the penal provision is abused to an unimaginable extent, for in a cruel, ruthless and totally revengeful manner, the young, old and relatives residing at distant places having no involvement with the incident, if any, are roped in. Thus, the abuse of the penal provision has vertically risen. When the implementation of law is abused by the law enforcing agency, the legislature introduces a protective provision as regards arrest. Needless to say, the courts have ample power to grant pre-arrest bail or popularly called anticipatory bail and even to quash the criminal proceeding totally to stabilize the lawful balance because no court of law remotely conceives of a war between the two sexes. The courts remain constantly alive to the situation that though no war takes place, yet neither anger nor vendetta of the aggrieved section should take an advantage of the legal provision and harass the other side with influence or espousing the principle of sympathy. The role of the law enforcing agency or the prosecuting agency is sometimes coloured with superlative empathy being totally oblivious of the sensation to make maladroit efforts to compete with the game of super sensitivity. Such a situation brings in a social disaster that has the potentiality to vertically divide the society. The sense of sensitivity and the study of social phenomenon are required to be understood with objectivity. In such a situation, it is obligatory on the part of the legislature to bring in protective adjective law and the duty of the constitutional courts to perceive and scrutinize the protective measure so that the social menace is curbed. We are, in the instant matters, focussing on Section 498-A of the Indian Penal Code, 1860 (for short, “the IPC”).
2. Section 498-A was brought into the statute book in the year 1983. The objects and reasons for introducing Section 498-A IPC can be gathered from the Statement of Objects and Reasons of Criminal Law (Second Amendment) Act of 1983 and read as under :-
"The increasing number of Dowry Deaths is a matter of serious concern. The extent of evil has been commented upon by the Joint Committee of the Houses constituted to examine the working of Dowry Prohibition Act, 1961. Cases of cruelty by the husband and the relatives of the husband which culminate in suicide by, or murder of the hapless woman concerned, constitute only a small fraction of the cases involving such cruelty. It is, therefore proposed to amend the Indian Penal Code, Code of Criminal Procedure and the Indian Evidence Act suitably to deal effectively not only with cases of Dowry Death but also cruelty to married woman by their in laws.
2. The following are the changes that are proposed to be made:-
(i) The Indian Penal Code is proposed to be amended to make cruelty to a woman by her husband or any relative of her husband punishable with an imprisonment for a term which may extend to three years and also with fine. Willful conduct of such a nature by the husband or any other relative of the husband as is likely to drive the woman to commit sui
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