Notable Excerpts ....
"498a weapon of Legal Terrorism"
..Supreme Court in Sushil Kumar Sharma vs. U.O.I (2005)
"Failed Marriage is no crime"
.....Delhi High Court
"Don't Jail Innocents over dowry : ......NHRC "
"Men at the receiving end of anti-dowry law in Orissa"
.Orissa State Women Commission
"86.6 % women of Tihar Jail are jailed in Dowry cases" …Sahara Samachar
"90 % women in Bihar's jails are locked up in Dowry Cases" …..NBT
"99 % dowry complaints are false "
…….A women head of women PS (Haryana)
Crimes on women: Cops told to follow SC directives
LAMBASTING THE city police for not following the directives laid down by the Supreme Court regarding investigation of heinous crimes against women, a city court has instructed the Commissioner of Police to pass fresh orders to give effect to SC directives.
Metropolitan Magistrate Kamini Lau while castigating the city police for not adhering to the directions laid down by the Apex court held; "I have observed that the local police stations are not adhering to the directions made to them. Even the cases of murder for dowry and rape which should be automatically transferred to the Crime Against Women (CAW) Cell are not being done."
The court also pulled up the city police for not utilizing the functions of the specialized bodies like the CAW,. The mahila court and family courts, which were created at the behest of the Apex Court.
The directions came in wake of an FIR registered with the South West District police in a case pertaining to dowry.
According to the petitioner, Yogesh Kumar, his wife Mamta Sharma filed a complaint at R K Puram police station on August 7.
The petitioner alleged that since his wife works in an NGO, which is being run by a senior police officer, the police arrested his parents and brother the very next day. This act, according to the petitioner, was in violation of Supreme Court guidelines.
The judge also accepted the submission and stated in her order: "It is apparent that the FIR had been registered by the local police on the complaint received directly by them which it seems is against the normal procedure….."
2. Laws to curb crime against women should not be abused : SC
"Landmark" and "trend setting" Guide-lines and directives given by both the apex court and the NHRC, on violations of human rights / while arresting a person.
Regarding the manner in which a citizen should be arrested and the safeguards that he is entitled to …..are implemented sincerely.
Chief Justice A. S. Anand asked the investigating agencies to comply with the requirements set by the Apex Court while arresting a person.
It is a naked violation of human dignity….whenever human dignity is wounded, civilization takes a step backward-flag of humanity must on each such occasion fly half mast. " The right to life Guaranteed under Article 21 of the constitution cannot be denied to convicts, under trials, detenus and other prisoners except according to the procedure established by the law.
Therefore, human values and constitutional ethos need to be infused in the police force. The cure cannot be worst than the disease itself, then action of the state must be right, just and fair," the apex asserted.
3. Supreme Court in the case of Jamuna Chaudhary and Others vs. State of Bihar, reported in (1974) Vol. 3 SCC 774. That legislative intent of providing succor to genuinely harassed and tormented women cannot be permitted to become a tool/instrument in the hands of a woman out to satisfy her ego by harassing and tormenting her in-laws when her marriage has failed for reasons extraneous to the relevant provisions of law.
Similar view was expressed by :
4. Supreme Court in the case G.C.Rao vs. L.H.V.Prasad and Others, I (2000) DMC 38 ( SC ) AIR 2000 2474, where his lordship observed:-
"There has been an outburst of matrimonial disputes in recent times. The marriage is a sacred ceremony, the main purpose of which is to enable young couple to settle down in life and live peacefully. But little matrimonial skirmishes suddenly erupt which often assume serious proportions resulting in commission of heinous crimes in which elders of family are also involved with the result that those who could have Counseled and brought about rapprochement are rendered helpless on their being arrayed as accused in the criminal case."
In the case in hand by implicating petitioner and the speed with which police acted did nothing but rendered him helpless counseling and putting better sense to the couple.
5. Delhi High Court on 21.5.2003 laid down the benchmarks to be followed in dowry based cases. High Court Frames Guidelines for Police,
Justice J.D.Kapoor recommended the offence of dowry to be investigated by the civil authorities like executive magistrates and after they reach at the conclusion the cognizance is to be taken and till such mechanism is framed by the government no police officer below the rank of ACP for offences under section 498-A and 406 IPC……………
State V/s. Jaspal Singh Narula & ors.
In a scathing order passed against the Delhi Police, High Court on Tues day accused the law enforcing agency of manipulating criminal cases which has cast a shadow of doubt on the fairness of the investigation carried out by them.
Justice RC Chopra did`t minse words while laying down guidelines for the police and asked them to strictly follow them to ensure an “ impartial “ probe..
The investigation of such cases should be supervised by the ACP of the area. The DCP should undertake fortnightly review of the case”
6. The Supreme Court of India in Sushil Kumar Sharma vs. U.O.I (2005) held that any misuse of this provision of law amounts to unleashing Legal Terrorism. It acknowledged that there are growing instances of women filing false charge.
7. The Supreme Court of India again in a scathing judgment delivered on Aug.13, 2010 – ordered the government to revisit the anti-dowry law -- Section 498A of Indian Penal Code -- saying it has been misused by women to lodge false or exaggerated complaints against husbands and their relatives accusing them of cruel behaviour.
8. The World Health Organization (WHO), in its Report of India clearly cited Section 498A as one of the major reasons for growing Elder Abuse in India.
9. The Law Commission in its 154th Report, the Malimath Committee Report (on Reforms of Criminal Justice System, 2003) and the 111th Report of the Parliamentary Standing Committee on Home Affairs, have all acknowledged that Section 498A is being widely misused;
10. The Center for Social Research (India), in a study on implications of Section 498A IPC state that “educated and independent minded women misuse the section”.
11. Latest circular by CP, Delhi (Delhi Police Standing Order & Delhi Police Notification – DP/8194/09)
Bid to stop dowry law misuse Hindustan Times - June 23, 2008
To prevent misuse of dowry harassment laws, no arrests will be made without prior investigations, a circular issued by the Commissioner of Police states.
According to the order, only the main accused will be arrested unlike previous instances when even the distant relatives were not spared. Earlier, a mere allegation or the name of a relative lodged in the First Information Report (FIR) by the complainant was enough to arrest the entire family.
The order issued by the Commissioner of Police clearly states that any arrests under sections 498 A (matrimonial cruelty) and 406 (criminal breach of trust) of the Indian Penal Code will be made with prior permission of a Deputy Commissioner of Police (DCP).
“Arrest of the accused should be an exception and not a rule. From the allegations set out in the FIR and other subsequent allegations or material collected during investigation, if necessary only the prime/main accused, whose primary role in commission of the offence has been established, should be arrested, and that too after the prior written approval of the DCP,” the order issued by Y.S. Dadwal, Commissioner of Police, reads.
The order also states a judgment passed by the Delhi High Court in 2003. The Court observed that Sections 498A/406 of the IPC which are “much abused provisions and exploited by the police and the victims to the level of absurdity….every relative of the husband, close or distant, old or minor is arrested by the police. Unless the allegations are very serious in nature and highest magnitude, arrest should be avoided”.
“The new guidelines have definitely ensured better monitoring. The supervision is also accurate. We now ensure that any arrest under Sections 498A/406 is not made without any evidence. This measure has proved to be a deterrent in arresting innocent people. Mere naming anyone in the FIR is not sufficient to arrest anyone. We have also seen a fall in the number of frivolous complaints after that,” said a senior police officer.
12. Recently the Hon’ble Supreme Court in Preeti Gupta & Anr. V. State of Jharkhand - AIR 2010 SC 3363 - their lordships Hon’ble J. DALVEER BHANDARI & K.S. RADHAKRISHNAN, JJ while directing the Law Commission to have a relook at the provisions, went on to hold :
“30. It is a matter of common experience that most of these complaints under section 498-A IPC are filed in the heat of the moment over trivial issues without proper deliberations. We come across a large number of such complaints which are not even bona fide and are filed with oblique motive. At the same time, rapid increase in the number of genuine cases of dowry harassment are also a matter of serious concern.
32. Unfortunately, at the time of filing of the complaint the implications and consequences are not properly visualized by the complainant that such complaint can lead to insurmountable harassment, agony and pain to the complainant, accused and his close relations.
33.…The allegations of harassment of husband's close relations who had been living in different cities and never visited or rarely visited the place where the complainant resided would have an entirely different complexion. The allegations of the complaint are required to be scrutinized with great care and circumspection. Experience reveals that long and protracted criminal trials lead to rancour, acrimony and bitterness in the relationship amongst the parties. It is also a matter of common knowledge that in cases filed by the complainant if the husband or the husband's relations had to remain in jail even for a few days, it would ruin the chances of amicable settlement altogether. The process of suffering is extremely long and painful.
34. Before parting with this case, we would like to observe that a serious relook of the entire provision is warranted by the legislation. It is also a matter of common knowledge that exaggerated versions of the incident are reflected in a large number of complaints. The tendency of over implication is also reflected in a very large number of cases.
If these judgments have been helpful to you write to :
498A/406/Misuse of Dowry Laws/125 CrPC/498A Anticipatory Bail Judgments.
Click here to download a bunch of judgments and guidelines that would help you with the case (Compiled by a Tortured Husband)