SC judgment on anti dowry law sparks protests from women’s groups

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Women’s rights activists are outraged as Supreme Court directs the police not to make immediate arrests under section 498A

By Team FI
Sparking nationwide outrage from women’s rights activists, the Supreme Court of India on Wednesday ruled that Section 498 (A) of the Indian Penal Code is used as “ weapon rather than shield by disgruntled wives” against the husband and his relatives.

The Apex court has further directed that the summary arrest on registration of the complaint must be stopped. Instead, the police must seek approval from a magistrate, stating good reasons for the need to arrest.

Section 498A of the Indian Penal Code was enacted in 1983 following a large number of dowry related murders where brides were murdered (mostly by burning) for not bringing enough dowry to the husband’s household as part of the marriage. Section 498A is a non- bailable offence and it protects women from being subjected to harassment and cruelty by her husband and his family.

After the introduction of the 498(A) several women came forward to lodge complaints of harassment against their husband’s relatives. The dowry demands were often accompanied by physical and mental violence. In these cases arrests following complaints were useful to stop the physical abuse. Indeed in the face of considerable societal consent and toleration both of dowry related torture and torture of women in the home, that these provisions of immediate arrest were found useful.

The judgment was delivered by Justice Chandramauli Kr. Prasad and Justice Pinaki Chandra Ghose in petition filed by Anresh Kumar. “The fact that Section 498-A is a cognizable and non-bailable offence has lent it a dubious place of pride amongst the provisions that are used as weapons rather than shields by disgruntled wives. The simplest way to harass is to get the husband and his relatives arrested under this provision” states the judgment.

“It is a terrible judgment that takes the clock back over four decades” says Kavita Srivastava of People’s Union for Civil Liberties (PUCL). Kavita Srivastava demands that the Bihar government should move a curative petition challenging the judgment.

The court has also issued a set of directions to the state and the Police ‘to prevent unnecessary arrest and causal and mechanical detention.” The directions are:

a) All the State Governments to instruct its police officers not to automatically arrest when a case under Section 498-A of the IPC is registered but to satisfy themselves about the necessity for arrest under the parameters laid down above flowing from Section 41, Cr.PC;

b) All police officers be provided with a check list containing specified sub- clauses under Section 41(1)(b)(ii);

c) The police officer shall forward the check list duly filed and furnish the reasons and materials which necessitated the arrest, while forwarding/producing the accused before the Magistrate for further detention;

d) The Magistrate while authorising detention of the accused shall peruse the report furnished by the police officer in terms aforesaid and only after recording its satisfaction, the Magistrate will authorise detention;

e) The decision not to arrest an accused, be forwarded to the Magistrate within two weeks from the date of the institution of the case with a copy to the Magistrate which may be extended by the Superintendent of police of the district for the reasons to be recorded in writing;

f) Notice of appearance in terms of Section 41A of Cr.PC be served on the accused within two weeks from the date of institution of the case, which may be extended by the Superintendent of Police of the District for the reasons to be recorded in writing;

g) Failure to comply with the directions aforesaid shall apart from rendering the police officers concerned liable for departmental action, they shall also be liable to be punished for contempt of court to be instituted before High Court having territorial jurisdiction.

h) Authorising detention without recording reasons as aforesaid by the judicial Magistrate concerned shall be liable for departmental action by the appropriate High Court.

i) We hasten to add that the directions aforesaid shall not only apply to the cases under Section 498-A of the I.P.C. or Section 4 of the Dowry Prohibition Act, the case in hand, but also such cases where offence is punishable with imprisonment for a term which may be less than seven years or which may extend to seven years; whether with or without fine.

j) We direct that a copy of this judgment be forwarded to the Chief Secretaries as also the Director Generals of Police of all the State Governments and the Union Territories and the Registrar General of all the High Courts for onward transmission and ensuring its compliance “

Copy of the judgment

Featured photo courtesy: Zubaan Books

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