Geeta Mehrotra Vs. State of U.P.

Geeta Mehrotra Vs. State of U.P.

Comment : A much needed respite, paves the way for many families implicated in a omnibus manner, with vague allegations. 




GEETA MEHROTRA & ANR.                                                   Appellants




STATE OF U.P. & ANR.                                                         Respondents


Criminal Appeal No. 1674 of 2012 (Arising out of SLP (Crl.) No. 10547/2010)-


Decided on 17-10-2012.


Quashing of FIR – Dowry / Cruelty – Quashed 




Gyan Sudha Misra, J.-This appeal by special leave in which we granted leave has been filed by the appellants against the order dated 6.9.2010 passed by the High Court of Judicature at Allahabad in Crl. Miscellaneous Application No.22714/2007 whereby the High Court had been pleased to dispose of the application moved by the appellants under Section 482 Cr.P.C. for quashing the order of the Magistrate taking cognizance against the appellants under Sections 498A/323/504/506 IPC read with Section 3/4 of the Dowry Prohibition Act with an observation that the question of territorial jurisdiction cannot be properly decided by the High Court under Section 482 Cr.P.C. for want of adequate facts. It was, therefore, left open to the appellants to move the trial court for dropping the proceedings on the ground of lack of territorial jurisdiction.


The High Court however granted interim protection to the appellants by directing the authorities not to issue coercive process against the appellants until disposal of the application filed by the appellants with a further direction to the trial court to dispose of the application if moved by the appellants, within a period of two months from the date of moving the application. The application under Section 482 Cr.P.C. was thus disposed of by the High Court. 


2. The appellants in spite of the liberty granted to them to move the trial court, have filed this appeal for quashing the proceedings which had been initiated on the basis of a case lodged by the respondent No.2 Smt. Shipra Mehrotra (earlier known as Shipra Seth) against her husband, father-in-law, mother-in-law, brother-in-law and sister-in-law. This appeal has been preferred by the sister-in- law, who is appellant No.1 and brother-in-law of the complainant, who is appellant No.2. 


3. The case emerges out of the first information report lodged by respondent No.2 Smt. Shipra Mehrotra under Sections 498A/323/504/506 IPC read with Section 3/4 of the Dowry Prohibition Act bearing F.I.R.No. 52/2004. The F.I.R. was registered at Mahila Thana Daraganj, Allahabad wherein the complainant alleged that she was married to Shyamji Mehrotra s/o Balbir Saran who was living at Eros Garden, Charmswood Village, Faridabad, Suraj Kund Road at Faridabad Haryana as per the Hindu marriage rites and customs. Prior to marriage the complainant and her

family members were told by Shyamji Mehrotra and his elder brother Ramji Mehrotra who is appellant No.2 herein and their mother Smt. Kamla Mehrotra and her sister

is appellant No.1 herein that Shyamji is employed as a Team Leader in a top I.T. Company in Chennai and is getting salary of Rs.45,000/- per month. After negotiation between the parents of the complainant and the accused parties, the marriage of the complainant Shipra Seth (later Shipra Mehrotra) and Shyamji Mehrotra was performed after which the respondent-complainant left for the house of her in- laws. 


4. It was stated that the atmosphere in the house was peaceful for sometime but soon after the wedding, when all the relatives left, the maid who cooked meals was first of all paid-off by the aforesaid four persons who then told the complainant that from now onwards, the complainant will have to prepare food for the family. In addition, the above mentioned people started taunting and scolding her on trivial issues. The complainant also came to know that Shyamji was not employed anywhere and always stayed in the house. Shyamji gradually took away all the money which the complainant had with her and then told her that her father had not given dowry properly, therefore, she should get Rupees five lakhs from her father in order to enable him to start business, because he was not getting any job. When the complainant clearly declined and stated that she will not ask her parents for money, Shyamji, on instigation of other accused-family members, started beating her occasionally. To escape every day torture and financial status of the family, the complainant took up a job in a Call Centre at Convergys on 17.2.2003 where the

complainant had to do night shifts due to which she used to come back home at around 3 a.m. in the morning. Just on her return from work, the household people started playing bhajan cassettes after which she had to getup at 7’o clock in the morning to prepare and serve food to all the members in the family. Often on falling asleep in the morning, Shyamji, Kamla Devi and Geeta Mehrotra tortured the complainant every day mentally and physically. Ramji Mehrotra often provoked the other three family members to torture and often used to make the complainant feel

sad by making inappropriate statements about  the complainant and her parents. Her husband Shyamji also took away the salary from the complainant. 


5. After persistent efforts, Shyamji finally got a job in Chennai and he went to Chennai for the job in May, 2003. But, it is alleged that there was no change in his behaviour even after going to Chennai. The complainant often called him on phone to talk to him but he always did irrelevant conversation. He never spoke properly with the complainant whenever he visited home and often used to hurl filthy abuses. The complainant states that she often wept and tolerated the tortures of the accused persons for a long time but did not complain to her family members, as that would have made them feel sad. At last, when the complainant realized that even her life was in danger, she was compelled to tell everything to her father on phone who was very upset on hearing her woes. On 15.7.2003 complainant heard some conversation of her mother-in-law and sister-in-law from which it appeared to her that they want to kill the complainant in the night only. Thereupon the complainant apprised her father of the situation on phone to which her father replied that he

will call back her father-in-law and she should go with him immediately and he will come in the morning. The father-in-law Satish Dhawan and  his wife who were living in NOIDA thereafter came in the night and somehow took the complainant to their home who also came to know of everything. The complainant’s  father and brother later went to her matrimonial home on 16.7.2003. On seeing her father and brother,  Kamla Mehrotra and Geeta Mehrotra started speaking loudly and started saying that Shyamji would be coming by the evening and so he should come in the evening for talking to them. Her father and brother then went away from there. That very day, her husband Shyamji and brother-in-law Ramji also reached home.

On reaching there, Shyamji abused her on phone and told her to send her father. 


6. When father and brother of the complainant went home in the evening, they were also insulted by all the four and video camera and tape were played and in the end they were told that they should leave from here. Insulted, they came back from there and then came back to with the complainant. For many days the complainant and her family members hoped that the situation would improve if the matter was resolved. Many times other people tried to persuade the in – laws but to no avail. Her brother went to their house to talk to her in – laws but it came to his knowledge that the in – laws had changed their house. After much effort, they came to know that the father-in- law and mother-in-law started living at B-39, Brahma cooperative group housing society, block 7, sector-7, Dwarka, Delhi. On  19.09.04 evening, her father talked to Kamla Mehrotra and Geeta Mehrotra regarding the complainant using bad words and it was said that if her daughter came there she will be kicked out. After some time Shyamji rang up at complainant’s home but on hearing the complainant’s voice, he told her abusively that now she should not come his way and she should tell her father not to phone him in future. At approximately 10:30 pm in the night Ramji’s phone came to the complainant’s home. He used bad words while talking to her father and in the end said that he had got papers prepared in his

defence and he may do whatever he could but if he could afford to give Rs.10 lakhs then it should be conveyed after which he will reconsider the matter. If the girl was sent to his place without money, then even her dead body will not be found. 


7. On hearing these talks of the accused, the complainant believed that her in-laws will not let the complainant enter their home without taking ten lakhs and if the complainant went there on her own, she will not be safe. Hence, she lodged  the report wherein she prayed that the SHO Daraganj should be ordered to do the needful after registering the case against the accused Shyam Mehrotra, Ramji Mehrotra, Kamla Mehrotra and Geeta Mehrotra. Thus, in substance, the complainant related the bickering at her matrimonial home which made her life miserable in

several ways and compelled her to leave her in- law’s place in order to live with her father where she lodged a police case as stated hereinbefore. 


8. On the basis of the complaint, the investigating authorities at P.S. Daraganj, Allahabad started investigation of the case and thereafter the police submitted chargesheet against the appellants and other family members of the complainant’s husband. 


9. Hence, the appellants who are sister and brother of the complainant’s husband filed petition under Section 482 Cr.P.C. for quashing of the chargesheet and the entire proceedings pending in the court of learned Judicial Magistrate, Court No.IV, Allahabad, inter- alia, on the ground that FIR has been lodged with mala fide intentions to harass the appellants and that no case was made out against the appellants as well as other family members. But the principal ground of challenge

to the FIR was that the incident although was alleged to have taken place at Faridabad and the investigation should have been done there only,  the complainant with mala fide intention in connivance with the father of the complainant, got the investigating officer to record the statements by visiting Ghaziabad which was beyond his territorial jurisdiction and cannot be construed as legal and proper investigation. It was also alleged that the father of the complainant got the arrest warrant issued through George Town Police Station, Allahabad, in spite of the cause of action having arisen at Allahabad. 


10. This appeal has been preferred by Kumari Geeta Mehrotra i.e. the sister of the complainant’s husband and Ramji Mehrotra i.e. the elder brother of the complainant’s husband assailing the order of the High Court and it was submitted  that the Hon’ble High Court ought to have appreciated that the complainant who had already obtained an ex-parte decree of divorce, is pursuing the present case through her father with the sole purpose to unnecessarily harass the appellants to extract money from them as all efforts of mediation had failed. 


11. However, the grounds of challenge before this Court to the order of the High Court, inter alia is that the High Court had failed to appreciate that the investigation had been done by the authority without following due process of law which also lacked territorial jurisdiction. The relevant documents/parcha diary for deciding the territorial jurisdiction had been overlooked as the FIR has been lodged at Allahabad although the cause of action of the entire incident is alleged to have taken place at Faridabad (Haryana). It  was, therefore, submitted that the investigating authorities of the Allahabad have traversed beyond the territorial limits which is clearly an abuse

of the process of law and the High Court has failed to exercise its inherent powers under Section 482 Cr.P.C. in the facts and circumstances of this case and allowed the proceedings to go on before the trial court although it had no jurisdiction to adjudicate the same. 


12. It was further averred that the High Court had failed to examine the facts of the FIR to see whether the facts stated in the FIR constitute any prima facie case making out an offence against the sister-in-law and brother-in-law of the complainant and whether there was at all any material to constitute an offence against the appellants and their family members. Attention of this Court was further invited to the contradictions in the statement of the complainant and her father which indicate material contradictions indicating that the complainant and her father have concocted the story to implicate the appellants as well as all their family members in a criminal case merely with a mala fide intention to settle her scores and extract money from the family of her exhusband Shyamji Mehrotra and his family members. 


13. On a perusal of the complaint and other materials on record as also analysis of the arguments advanced by the contesting parties in the light of the settled rinciples of law reflected in a catena of decisions, it is apparent that the High Court has not applied its mind on the question as to whether the case was fit to be quashed against the appellants and has merely disposed of the petition granting liberty to the appellants to move the trial court and raise contentions on the ground as to whether it has territorial jurisdiction to continue with the trial in the light of the averment that no part of the cause of action had arisen at Allahabad and the entire incident even

as per the FIR had taken place at Faridabad. 


14. The High Court further overlooked the fact that during the pendency of this case, the complainant-respondent No.2 has obtained an ex-parte decree of divorce against her husband Shyamji Mehrotra and the High Court failed to apply its mind whether any case could be held to have been made out against Kumari Geeta Mehrotra and Ramji Mehrotra, who are the unmarried sister and elder brother of the complainant’s  ex-husband. Facts of the FIR even as it stands indicate that although a prima facie case against the husband Shyamji Mehrotra and some other accused persons may or may not be constituted, it surely appears to be a case where no

ingredients making out a case against the unmarried sister of the accused Shyamji Mehrotra and his brother Ramji Mehrotra appear to be existing for even when the complainant came to her inlaw’s house after her wedding, she has alleged physical and mental torture by stating in general that she had been ordered to do household activities of cooking meals for the whole family. But there appears to be no specific allegation against the sister and brother of the complainant’s husband as to how they could be implicated into the mutual bickering between the complainant and her husband Shyamji Mehrotra including his parents. 


15. Under the facts and circumstance of similar nature in the case of Ramesh vs. State of Tamil Nadu reported in (2005) SCC (Crl.) 735 at 738 allegations were made in a complaint against the husband, the in-laws, husband’s brother and sister who were all the  petitioners before the High Court wherein after registration of the F.I.R. and investigation, the charge sheet was filed by the Inspector of Police in the court of Judicial Magistrate III, Trichy. Thereupon, the learned magistrate took cognizance of the offence and  issued warrants against the appellants on 13.2.2002. Four of the accused-appellants were arrested and released on bail by the magistrate at Mumbai. The appellants had filed petition under Section 482, Cr.P.C. before the Madras High

Court for quashing the proceedings in complaint case on the file of the Judicial Magistrate III, Trichy. The High Court by the impugned order dismissed the petition observing that the grounds raised by the petitioners were all subject matters to be heard by the trial court for better appreciation after conducting full trial as the High Court was of the view that it was only desirable to dismiss the criminal original petition and the same was also dismissed. However, the High Court had directed the Magistrate to dispense with the personal attendance of the appellants. 


16. Aggrieved by the order of the Madras High Court dismissing the petition under Section 482 Cr.P.C., the special leave petition was filed in this Court giving rise to the appeals therein where threefold contentions were raised viz., (i) that the allegations are frivolous and without any basis; (ii) even according to the FIR, no incriminating acts were done within the jurisdiction of Trichy Police Station and the court at Trichy and, therefore, the learned magistrate lacked territorial

jurisdiction to take cognizance of the offence and (iii) taking cognizance of the alleged offence at that stage was barred under Section 468(1) Cr.P.C. as it was beyond the period of limitation prescribed under Section 468(2) Cr.P.C. Apart from the subsequent two contentions, it was urged that the allegations under the FIR do not make  out any offence of which cognizance could be taken. 


17. Their Lordships of the Supreme Court in this matter had been pleased to hold that the bald allegations made against the sister in law by the complainant appeared to suggest the anxiety of the informant to rope in as many of the husband’s relatives as possible. It was held that neither the FIR nor the charge sheet furnished the legal basis for the magistrate to take cognizance of the offences alleged against the appellants. The learned Judges were pleased to hold that looking to the allegations in the FIR and the contents of the charge sheet, none of the alleged offences under

Section 498 A, 406 and Section 4 of the Dowry Prohibition Act were made against the married sister of the complainant’s husband who was undisputedly not living with the family of the complainant’s husband. Their Lordships of the Supreme Court were pleased to hold that the High Court ought not to have relegated  the sister in law to the ordeal of trial. Accordingly, the proceedings against the appellants were quashed and the appeal was allowed. 


18. In so far as the plea of territorial jurisdiction is concerned, it is no doubt true that the High Court was correct to the extent that the question of territorial jurisdiction could be decided by the trial court itself. But this ground was just one of the grounds to quash the proceedings initiated against the appellants under Section 482 Cr.P.C. wherein it was also alleged that no prima facie case was made out against the appellants for initiating the proceedings under the Dowry Prohibition Act and other provisions of the IPC. The High Court has failed to exercise its jurisdiction in so far as the consideration of the case of the appellants are concerned, who are only brother and sister of the complainant’s husband and are not alleged even by the complainant to have demanded dowry from her. The High Court, therefore, ought to have considered that even if the trial court at Allahabad had the jurisdiction to hold the trial, the question still remained as to whether the trial against the brother and sister of the husband was fit to be continued and whether

that would amount to abuse of the process of the court. 


19. Coming to the facts of this case, when the contents of the FIR is perused, it is apparent that there are no allegations against Kumari Geeta Mehrotra and Ramji Mehrotra except casual reference of their names who have been included  in the FIR but mere casual reference of the names of the family members in a matrimonial dispute without allegation of active involvement in the matter would not justify taking cognizance against them overlooking the fact borne out of experience that there is a tendency to involve the entire family members of the household in the

domestic quarrel taking place in a matrimonial dispute specially if it happens soon after the wedding.

20. It would be relevant at this stage to take note of an apt observation of this Court recorded in the matter of G.V. Rao vs. L.H.V. Prasad & Ors. reported in (2000) 3 SCC 693 wherein also in a matrimonial dispute, this Court had held that the High Court should have quashed the complaint arising out of a matrimonial dispute wherein all family members had been roped into the matrimonial litigation which was quashed and set aside. Their Lordships observed therein with which we entirely agree that:

“there has been an outburst of matrimonial dispute in recent times. Marriage is a sacred ceremony, main purpose of which is to enable the young couple to settle down in life and live peacefully. But little matrimonial skirmishes suddenly erupt which often assume serious proportions resulting in heinous crimes in which elders of the family are also involved with the result that those who  could have counselled and brought about rapprochement are rendered helpless on their  being arrayed as accused in the criminal case. There are many reasons which need not be mentioned here for not encouraging matrimonial litigation so that the parties may ponder over their defaults and terminate the disputes amicably by mutual agreement instead of fighting it out in a court of law where it takes years and years to conclude and in that process the parties lose their “young” days in chasing their cases in different courts.”


The view taken by the judges in this matter was that the courts would not Encourage such disputes. 


21. In yet another case reported in AIR 2003 SC 1386 in the matter of B.S. Joshi & Ors. vs. State of Haryana & Anr. it was observed that there is no doubt that the object of introducing Chapter XXA containing Section 498A in the Indian Penal Code was to prevent the torture to a woman by her husband or by relatives of her husband. Section 498A was added with a view to punish the husband and his relatives who harass or torture the wife to coerce her relatives to satisfy unlawful

demands of dowry. But if the proceedings are initiated by the wife under Section 498A against the husband and his relatives and subsequently she has settled her disputes with her husband and his relatives and the wife and husband agreed for mutual divorce, refusal to exercise inherent powers by the High Court would not be proper as it would prevent woman from settling earlier.


Thus for the purpose of securing the ends of justice quashing of FIR becomes necessary, Section 320 Cr.P.C. would not be a bar to the exercise of power of quashing. It would however be a different matter depending upon the facts and circumstances of each case whether to exercise or not to exercise such a power. 


22. In the instant matter, when the complainant and her husband are divorced as the complainantwife secured an ex-parte decree of divorce, the same could have weighed with the High Court to consider whether proceeding initiated prior to the divorce decree was fit to be pursued in spite of absence of specific allegations at least against the brother and sister of the complainant’s husband and whether continuing with this proceeding could not have amounted to abuse of the process of

the court. The High Court, however, seems not to have examined these aspects carefully and have thus side- tracked all these considerations merely on the ground that the  territorial jurisdiction could be raised only before the magistrate conducting the trial. 


23. In the instant case, the question of territorial jurisdiction was just one of the grounds for quashing the proceedings along with the other grounds and, therefore, the High Court should have examined whether the prosecution case was fit to  be quashed on other grounds or not. At this stage, the question also crops up whether the matter is fit to be remanded to the High Court to consider all these aspects. But in matters arising out of a criminal case, fresh consideration remanding the same would further result into a  protracted and vexatious proceeding which is unwarranted as was held by this Court in the case of Ramesh vs. State of Tamil Nadu (supra) that  such a course of remand would be unnecessary and inexpedient as there was no need to prolong the controversy. The facts in this matter on this aspect was although somewhat different since the complainant had lodged the complaint after seven  years of delay, yet in the instant matter the factual position remains that the complaint as it stands lacks ingredients constituting the offence

under Section 498A and Section 3/4 Dowry Prohibition Act against the appellants who are sister and brother of the complainant’s husband and their involvement in the whole incident appears only by way of a casual inclusion of their names. Hence, it cannot be overlooked that it would be total abuse of the process of law if we were to remand the matter to the High Court to consider whether there were still any material to hold that the trial should proceed against them in spite of absence of prima facie material constituting the offence alleged against them. 


24. However, we deem it appropriate to add by way of caution that we may not be misunderstood so as to infer that even if there are allegation of overt act indicating the complicity of the members of the family named in the FIR in a given case, cognizance would be unjustified but what we wish to emphasize by highlighting is that, if the FIR as it stands does not disclose specific allegation against accused more so against the co-accused specially in a matter arising out of matrimonial bickering, it would be clear abuse of the legal and judicial process to mechanically send the named accused in the FIR to undergo the trial unless of course the FIR

discloses specific allegations which would persuade the court to take cognisance of the offence alleged against the relatives of the main accused who are prima facie not found to have indulged in physical and mental torture of the complainant-wife. It is the well settled principle laid down in cases too numerous to mention, that if the FIR did not disclose the commission of an offence, the court would be justified in quashing the proceedings preventing the abuse of the process of law.


Simultaneously, the courts are expected to adopt a cautious approach in matters of quashing specially in cases of matrimonial dispute whether the FIR in fact discloses commission of an offence by the relatives of the principal accused or the FIR prima facie discloses a case of overimplication by involving the entire family of the accused at the instance of the complainant, who is out to settle her scores arising out of the teething problem or skirmish of domestic bickering while settling down in her new matrimonial surrounding. 


25. In the case at hand, when the brother and unmarried sister of the principal accused Shyamji Mehrotra approached the High Court for quashing the proceedings against them, inter-alia, on the ground of lack of territorial jurisdiction as also on the ground that no case was made out against them under Sections 498A,/323/504/506 including Sections 3/4 of the Dowry Prohibition Act, it was the legal duty of the High Court to examine whether there were prima facie material against the appellants so that they could be directed to undergo the trial, besides the question of territorial

jurisdiction. The High Court seems to have overlooked all the pleas that were raised and rejected the petition on the solitary ground of territorial  jurisdiction giving liberty to the appellants to approach the trial court. 


26. The High Court in our considered opinion appear to have missed that assuming the trial court had territorial jurisdiction, it was still left to be decided whether it was a fit case to send the appellants for trial when the FIR failed to make out a prima facie case against them regarding the allegation of inflicting physical and mental torture to the complainant demanding dowry from the complainant. Since the High Court has failed to consider all these aspects, this Court as already stated hereinbefore, could have remitted the matter to the High Court to consider whether a case was made out against the appellants to proceed against them. But as the contents of the FIR does not disclose specific allegation against the brother and sister of the complainant’s husband except casual reference of their names, it would not be just to direct them to go through protracted procedure by remanding for consideration of the matter all over again by the High Court and make the unmarried sister of the main accused and his elder brother to suffer the ordeal of a criminal case pending against them specially when the FIR does not disclose ingredients of

offence under Sections 498A/323/504/506, IPC and Sections 3/4 of the Dowry Prohibition Act. 


27. We, therefore, deem it just and legally appropriate to quash the proceedings initiated against the appellants Geeta Mehrotra and Ramji Mehrotra as the FIR does not disclose any material which could be held to be constituting any offence against these two appellants. Merely by making a general allegation that they were also involved in physical and mental torture of the complainant-respondent No.2 without mentioning even a single incident against them as also the fact as to how they could be motivated to demand dowry when they are only related as brother and sister of the complainant’s husband, we are pleased to quash and set aside the criminal

proceedings in so far as these appellants are concerned and consequently the order passed by the  High Court shall stand overruled. The appeal accordingly is allowed.



Misuse of 498a – False 498A Legal Terrorism says Supreme Court in Sushil Kumar


Civil appeal No. 4399 of 2005 (Arising out of SLP (C) no. 17656 of 2004

Decided On: 19.07.2005

Appellants: Sushil Kumar Sharma
Respondent: Union of India (UOI) and Ors.


By this petition purported to have been filed under Article 32 of the Constitution of India, 1950 (in short ‘the Constitution’) prayer is to declare Section 498A of Indian Penal Code, 1860 (in short ‘the IPC’) to be unconstitutional and ultra vires in the alternative

to FORMULATE GUIDELINES so that INNOCENT PERSONS ARE NOT VICTIMIZED by unscrupulous persons making false accusations

2. Further prayer is made that whenever, any court comes to the conclusion that the allegations made regarding commission of offence under Section 498A IPC are unfounded, stringent action should be taken against person making the allegations. This, according to the petitioner, would discourage persons from coming to courts with unclean hands and ulterior motives. Several instances have been highlighted to show as to how commission of offence punishable under Section 498A IPC has been made with oblique motives and with a view to harass the husband, in-laws and relatives.

 3. According to the petitioner there is no prosecution in these cases but persecution. Reliance was also placed on a decision rendered by a learned Single Judge of the Delhi High Court wherein concern was shown about the increase in number of false and frivolous allegations made. It was pointed out that accusers are more at fault than the accused. Persons try to take undue advantage of the sympathies exhibited by the courts in matters relating to alleged dowry torture.

 4. Section 498A appears in Chapter XXA of IPC.

 5. Substantive Section 498A IPC and presumptive Section 113B of the Indian Evidence Act, 1372 (in short ‘Evidence Act’) have been inserted in the respective statutes by Criminal Law ( Second Amendment) Act, 1983.

 6. Section 498A IPC and Section 113B of the Evidence Act include in their amplitude past events of cruelty. Period of operation of Section 113B of the Evidence Act is seven years, presumption arises when a woman committed suicide within a period of seven years from the date of marriage.

 7. Section 498A reads as follows: “498A: Husband or relative of husband of a woman subjecting her to cruelty- 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 purpose 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.”

 Section 113B reads as follows:-

 “113B: Presumption as to dowry death- When the question is whether a person has committed the dowry death of a woman and it is shown that soon before her death such woman has been subjected by such person to cruelty or harassment for, or in connection with, any demand for dowry, the Court shall presume that such person had caused the dowry death.

 Explanation – For the purposes of this section ‘dowry death’ shall have the same meaning as in Section 304B of the Indian Penal Code (45 of 1860).”

 8. Consequences of cruelty which are likely to drive a woman to commit suicide or to cause grave injury or danger to life, limb or health, whether mental or physical of the woman is required to be established in order to bring home the application of Section 498A IPC. Cruelty has been defined in the explanation for the purpose of Section 498A. It is to be noted that. Sections 304B and 498A, IPC cannot be held to be mutually inclusive. These provisions deal with two distinct offences. It is true that cruelty is a common essential to both the Sections and that has to be proved. The explanation to Section 498A gives the meaning of ‘cruelty’. In Section 304B there is no such explanation about the meaning of ‘cruelty’. But having regard to common background to these offences it has to betaken that the meaning of ‘cruelty’ or ‘harassment’ is the same as prescribed in the Explanation to Section 498A under which ‘cruelty’ by itself amounts to an offence.

 9. The object for which Section 498A IPC was introduced is amply reflected in the Statement of Objects and Reasons while enacting Criminal Law (Second Amendment) Act No. 46 of 1983. As clearly stated therein the increase in number of dowry deaths is a matter of serious concern. The extent of the evil has been commented upon by the Joint Committee of the Houses to examine the work of the Dowry Prohibition Act, 1961. In some cases, cruelty of the husband and the relatives of the husband which culminate in suicide by or murder of the helpless woman concerned, which constitute only a small fraction involving such cruelty. Therefore, it was proposed to amend IPC, the Code of Criminal Procedure, 1973 (in short ‘the Cr.P.C.’) and the Evidence Act suitably to deal effectively not only with cases of dowry deaths but also cases of cruelty to married women by the husband, in-law and relatives. The avowed object is to combat the menace of dowry death and cruelty.

 10. One other provision which is relevant to be noted is Section 306 IPC. The basic difference between the two Sections i.e. Section 306 and Section 498A is that of intention. Under the latter, cruelty committed by the husband or his relations drag the women concerned to commit suicide,

 while under the former provision suicide is abetted and intended.

 11. It is well settled that mere possibility of abuse of a provision of law does not per se invalidate a legislation. It must be presumed, unless contrary is proved, that administration and application of a particular law would be done “not with an evil eye and unequal hand” (see: A. Thangal Kunju Musaliar v. M. Venkatachalam Potti, Authorised Official and Income-Tax Officer and Anr.)

 12. In Budhan Choudhry and Ors. v. State of Bihar a contention was raised that a provision of law may not be discriminatory but it may land itself to abuse bringing about discrimination between the persons similarly situated. This court repelled the contention holding that on the possibility of abuse of a provision by the authority, the legislation may not be held arbitrary or discriminatory and violative of Article 14 of the Constitution.

 13. From the decided cases in India as well as in United States of America, the principle appears to be well settled that if a statutory provision is otherwise intra-vires, constitutional and valid, mere possibility of abuse of power in a given case would not make it objectionable, ultra-vires or unconstitutional. In such cases, “action” and not the “section” may be vulnerable. If it is so, the court by upholding the provision of law, may still set aside the action, order or decision and grant appropriate relief to the person aggrieved.

 14. In Mafatlal Industries Ltd. and Ors. v. Union of India and Ors., a Bench of 9 Judges observed that mere possibility of abuse of a provision by those in charge of administering it cannot be a ground for holding a provision procedurally or substantively unreasonable. In Collector of Customs v. Nathella Sampathu Chetty (1962 (3) SCR 786) this Court observed:


 “The possibility of abuse of a statute otherwise valid does not impart to it any element of invalidity.” It was said in State of Rajasthan v. Union of India “it must be remembered that merely because power may sometimes be abused, it is no ground for denying the existence of power. The wisdom of man has not yet been able to conceive of a Government with power sufficient to answer all its legitimate needs and at the same time incapable of mischief.” (Also see: Commissioner, H.R.E. v. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Meth (1954 SCR 1005).


 15. As observed in Maulavi Hussein Haji Abraham Umarji v. State of Gujarat. Unique Butle Tube Industries (P) Ltd. v. U.P. Financial Corporation and Ors. and Padma Sundara Rao (dead) and Ors. v. State of Tamil and Ors., while interpreting a provision, the Court only interprets the law and cannot legislate it. If a provision of law is misused and subjected to the abuse of the process of law, it is for the legislature to amend, modify or repeal it, if deemed necessary.


 16. The judgment of the Delhi High Court on which reliance was made was rendered in the case of Savitri Devi v. Ramesh Chand and Ors. In that case while holding that the allegations regarding commission of offence punishable under Section 498A IPC were not made out. Certain observations in general terms were made about the need for legislative changes. The complainant had moved this Court against the judgment on merits in SLP(Crl)……of 2003 entitled Savitri Devi v. Ramesh Chand and Ors. By order dated 28.11.2003 this Court observed, as follows:

  “Heard learned counsel for the petitioner. Delay condoned.

  We do not see any merit in the challenge made to the order of the High Court in Criminal Revision No. 462 of 2002, on the facts of the case. The special leave petition is, therefore, dismissed.

  At the same time, we express our disapproval of some of the generalized views expressed in paragraphs 23 to 32 of the judgment of the High Court by the learned Single Judge. The learned Judge ought to have seen that such observations, though may be appropriate for seminars or workshops, should have been avoided being incorporated as part of a court judgment. Some of the views also touch upon Legislative measures and wisdom of legislative policy in substance, which according to the learned Judge need to be taken into account. There was no scope for considering all such matters in the case which was before the learned Judge. It is, therefore, appropriate that such generalized observations or views should meticulously avoided by Courts in the judgments.”

  17. Above being the position we find no substance in the plea that Section 498A has no legal or constitutional foundation.

  18. The object of the provision is prevention of the dowry menace. But as has been rightly contented by the petitioner many instances have come to light where the complaints are not bonafide and have been filed with oblique motive. In such cases acquittal of the accused does not in all cases wipe out the ignominy suffered during and prior to trial. Sometimes adverse media coverage adds to the misery. The question, therefore, is what REMEDIAL MEASURES can be taken to prevent abuse of the well-intentioned provision. Merely because the provision is constitutional and intra vires, does not give a licence to unscrupulous persons to wreck personal vendetta or unleash harassment. It may, therefore, become necessary for the legislature to find out ways how the makers of frivolous complaints or allegations can be appropriately dealt with. Till then the Courts have to take care of the situation within the existing frame work. As noted above the object is to strike at the roots of dowry menace. But by misuse of the provision a new


 can be unleashed. The provision is intended to be used a shield and not an assassin’s weapon. If cry of “wolf” is made too often as a prank assistance and protection may not be available when the actual “wolf” appears. There is no question of investigating agency and Courts casually dealing with the allegations. They cannot follow any straitjacket formula in the matters relating to dowry tortures, deaths and cruelty. It cannot be lost sight of that ultimate objective of every legal system is to ARRIVE AT TRUTH, PUNISH THE GUILTY AND PROTECT THE INNOCENT. There is no scope for any pre-conceived notion or view. It is strenuously argued by the petitioner that the investigating agencies and the courts start with the presumptions that the accused persons are guilty and that the complainant is speaking the truth. This is too wide available and generalized statement. Certain statutory presumptions are drawn which again are rebuttable. It is to be noted that the role of the investigating agencies and the courts is that of watch dog and not of a bloodhound. It should be their effort to see that an innocent person is not made to suffer on account of unfounded, baseless and malicious allegations. It is equally undisputable that in many cases no direct evidence is available and the courts have to act on circumstantial evidence. While dealing with such cases, the law laid down relating to circumstantial evidence has to be kept in view.

 19. Prayer has been made to direct investigation by the Central Bureau of Investigation (in short the ‘CBI’) in certain matters where the petitioner is arrayed as an accused. We do not find any substance in this plea. If the petitioner wants to prove his innocence, he can do so in the trial, if held.

Held : The Writ Petition is accordingly disposed of.

Allahabad High Court guidelines on arrests in 498A/406/Dowry Cases.

Allahabad High Court guidelines on arrests in 498A/406/Dowry Cases. 

Court No. – 46
Case :- CRIMINAL MISC. WRIT PETITION No. – 3322 of 2010

Petitioner :- Re: In The Matter Of Matrimonial Disputes
Respondent :- State Of U.P. & Others
Petitioner Counsel :- P.N. Gangwar
Respondent Counsel :- Govt. Advocate,Abhay Raj Singh,Pankaj Naqvi

Hon’ble Amar Saran,J.
Hon’ble Shyam Shankar Tiwari,J.

On 8.8.2011, there was an extensive hearing in this case when Ms. Leena Jauhari,
Secretary (Home), Government of U.P. Lucknow, Smt. Poonam Sikand, Additional L.R
and Tanuja Srivastava, I.G.( Public Grievances), Ms. G. Sridevi, Secretary, U.P.
State Legal Services Authority, Sri Ashok Mehta, Organising Secretary, Allahabad
High Court, Mediation and Conciliation Centre, Sri Pankaj Naqvi, Sister Sheeba
Jose Advocates on behalf of the intervenor ‘Sahyog,’ Sri D.R. Chaudhary, learned
Government Advocate and Sri Bimlendu Tripathi, learned A.G.A appeared and were
heard at length.

An affidavit has also been filed on behalf of the Director General of Police on
10.8.2011. Another affidavit was also filed on behalf of Special Secretary
(Home), U.P. on 12.8.2011. An application was also moved by the intervenor

This Court appreciates the positive contributions and suggestions of all the
aforesaid advocates and other State officials and that this pro bono litigation
is being taken up in the right non-adversarial spirit, with the aim to ensure
that wherever allegations are not very grave, in order to save families, and
children and indeed the institution of marriage, an effort be first made for
reconciling matrimonial disputes by mediation before steps can be taken for
prosecuting offenders, if they are called for.

In Preeti Gupta v. State of
Jharkhand, AIR 2010 SC 3363 the learned members of the bar have been reminded of
their noble profession and their noble tradition and of their responsibility to
ensure that the social fibre of family life is preserved by desisting from
over-implicating all in-laws and their relations as accused persons in 498-A IPC
reports, and from filing exaggerated reports. They are also to make an endeavour
to bring about amicable settlements to this essentially human problem. It has
also been rightly pointed out in Sushil Kumar Sharma v Union of India, AIR 2005
SC 3100 (para 18) whilst upholding the vires of section 498-A IPC, that it
should be ensured that complaints are not filed with oblique motives by
unscrupulous litigants so that a “new legal terrorism” is not unleashed, and
that the well-intentioned provision is not misused.

In Kans Raj v State of Punjab, AIR 2000 SC 2324, it has been held that there is
a tendency in cases of 498-A IPC and 304 B IPC to rope in a large number of
in-laws of the victim wife, and not only the husband. In para 5 of the law
report it has been observed: “….In their over enthusiasm and anxiety to seek
conviction for maximum people, the parents of the deceased have been found to be
making efforts for involving other relations which ultimately weaken the case of
the prosecution even against the real accused as appears to have happened in the
instant case.”

Specifically as a result of the interaction and suggestions which emerged after
a dialogue with the Advocates and officials, this Court requires to formulate
its opinion on the following points:

1.Whether registration of an FIR is mandatory once an aggrieved woman or the
eligible family members as specified under section 198A Cr.P.C approaches the
police station giving information that an offence under section 498A IPC or
allied provisions such as under section � D.P. Act or under section 406
I.P.C have been committed by the husband or other in-laws and their relations.

2.Should the concerned police officers immediately proceed to arrest the husband
and other family members of the husband whenever such an FIR is lodged.

3.Can a distinction be made between the cases where arrest is immediately
necessary and other cases where arrest can be deferred and an attempt be first
made for bringing about mediation between the parties.

4.What is the appropriate place where mediation should be conducted.

5.Should a time frame be laid down for concluding the mediation proceedings.

6.Who should be the members of the mediation cell in the district.

7.What is the procedure to be followed by the police when a report of a
cognizable offence under section 498A IPC or allied provisions is disclosed.

8.Is training of mediators desirable and who should conduct the training?

9.Should the offence under Section 498A be made compoundable and what steps the State Government may take in this direction.

Discussions on the points requiring formulation by the Court.

1. Whether registration of an FIR is mandatory?

Section 154 of the Code of Criminal Procedure mandates that when any information
regarding information of a cognizable offence is given orally to the officer in
charge of the Police Station, he is required to reduce it in writing and to
enter it into the general diary. The said provision gives no option to the
concerned Police Officer to refuse to lodge the F.I.R. once information of a
cognizable offence is given to the police officer.

In paragraph No. 30 and 31 in State of Haryana and others Vs. Bhajan Lal, 1992
Cri. L.J. 527, it has been laid down that section 154 (1) of the Code provides
that whenever an information is given that a cognizable offence has been
committed, the Police Officer cannot embark upon an inquiry to ascertain as to
whether the information was reliable or genuine or refuse to register the case
on that ground. The officer in charge of the Police Station is statutorily
obliged to register the case and then to proceed with the investigation, if he
even has reason to suspect the commission of an offence.

(2) Whether arrest of husband and family members mandatory once FIR is lodged
It is noteworthy that section 154 Cr.P.C. which deals with the powers of
investigation and the necessity of lodging an FIR when a cognizable offence only
speaks of “information relating to the commission of a cognizable offence” given
to an officer. No pre-condition, as pointed out above, is placed under this
provision for first examining whether the information is credible or genuine. In
contrast section 41(1)((b) Cr.P.C dealing with the powers of the police to
arrest without a warrant from a Magistrate requires the existence of a
“reasonable complaint,” or “credible information” or “reasonable suspicion” of
the accused being involved in a cognizable offence as pre-conditions for
effecting his arrest.

The two provisos to section 157 also speak of two exceptions when investigation
(and consequent arrest) may not be necessary. These two situations are:
(a) when information as to the commission of any such offence is given against
any person by name and the case is not of a serious nature, the officer in
charge of a police station need not proceed in person or depute a subordinate
officer to make an investigation on the spot;
(b) if it appears to the officer in charge of a police station that there is no
sufficient ground for entering on an investigation, he shall not investigate the
case. However in such situations the police officer is to mention in his report
the reasons for not investigating the case. In the second case, where a police
officer is of the opinion that there is no sufficient ground for investigating a
matter, he is to also inform the informant of his decision.
The proviso (b) to section 157 (1) Cr. P. C. has been discussed in paragraphs
No. 53 and 54 in Bhajan Lal (supra). The law report clarifies that clause (b) of
the proviso permits a police officer to satisfy himself about the sufficiency of
the grounds even before entering on an investigation. However, at that stage,
the satisfaction that on the allegations, a cognizable offence warranting
investigation is disclosed, has only to be based on the F.I.R. and other
materials appended to it, which are placed before the Police Officer. Therefore,
if it appears to the Police Officer that the matrimonial dispute between the
spouses is either not of a grave nature or is the result of a conflict of egos
or contains an exaggerated version, or where the complainant wife has not
received any injury or has not been medically examined, he may even desist or
defer the investigation in such a case.

Recently by Act No. 5 of 2009, the newly introduced section 41 (1) (b), has been
given effect to from 1.11.2010. This sub-section provides that if some material
or credible information exists of an accused being involved in a cognizable
offence punishable with 7 years imprisonment or less with or without fine, the
Police Officer has only to make an arrest, if he is satisfied that such arrest
is necessary (i) to prevent such person from committing any further offence,
(ii) for proper investigation of the offence; (iii) to prevent such person from
causing the evidence of the offence to disappear or tampering with the evidence
in any manner; (iv) for preventing such person from making any inducement,
threat or promise to a witness to dissuade him from disclosing such facts to the
Court or the Police Officer (v) or unless such a person is arrested, he may not
appear in the Court when required. This new provision has forestalled any
routine arrests simply because a person is said to be involved in a cognizable
offence punishable with imprisonment up to 7 years. The arrest is only to be
effected if any or all of the five conditions abovementioned are fulfilled. For
making or for not making such arrest, the Police Officer has to record his
reasons. In contrast to this provision, under section 41 (1) (ba) such a
limitation has not been provided for those cases, where credible information has
been received that a person has committed an offence punishable with
imprisonment of over 7 years.

A new provision, section 41 A Cr.P.C has also been added by Act No. 5 of 2009
(with effect from 1.11.2010) which gives powers to a Police Officer to issue a
notice directing the person against whom a reasonable complainant has been made
or credible information or reasonable suspicion exists to appear before him or
at any place that he may specify in the notice where the police officer is of
the opinion that the arrest is not required under the provisions of section
41(1) Cr.P.C. but the accused is to comply with the notice and he would not be
arrested, if he continues to comply with the terms of the notice. However, where
the person fails to comply with the notice, the police has all powers to arrest
him, unless there is some order of the Court granting him bail or staying his

Now an offence under section 498A IPC is punishable with imprisonment only up to
three years and fine. If there are no injuries on a victim, in our opinion, it
constitutes a fit case for the police officer to exercise powers conferred by
the newly introduced section 41(1)(b) read with section 41 (A), where instead of
straight away arresting the accused, it would be a better option at the initial
stage for the police officer to require the said person to appear before him or
before the Mediation Centre. As pointed out above section 41 A Cr.P.C. permits
calling the person concerned before the police officer himself or to any
specified place. Hence a notice can be given to the accused to appear before the
mediation centre. This restraint on arrest, and placing of conditions or terms
for arrest would also apply a fortiori to the accused family members of the
husband of the aggrieved wife.

It may be pointed out that if the FIR is immediately registered that will
placate the concerns of the aggrieved wife to some extent that action is being
taken on her complaint, and it has not been put on the back burner.

(3) Whether distinction possible between cases necessitating immediate arrest,
and cases where attempt for mediation should first be made

Arrest may be necessitated, if the husband or other in-laws have given a grave
beating to the wife endangering her life or where the wife has been subjected to
repeated violence or there are any other circumstances of exceptional cruelty
against the wife, where future recurrence of violence or cruelty seems likely,
or for preventing the husband and his accused family members from trying to
browbeat witnesses or to tamper with the course of justice, or for ensuring the
presence of the husband or his accused family members at the trial, or for
effective investigation. In all other cases, we are of the opinion that an
attempt should be first made for bringing about reconciliation between the
parties by directing the complainant wife and her natal family members and the
husband and other family members to appear before the Mediation Centre when the
wife or other eligible relations under section 198-A Cr.P.C. approaches the
police station for lodging the report.

The advantage of not immediately arresting the accused husband and his family
members in a trivial case where there appear to be no injuries on the aggrieved
wife, is that in sudden matrimonial disputes, because of clash of egos between
the wife and her natal family members and the husband and in-laws, the wife’s
side at the initial stage usually insists on effecting the arrests of the
husband and other in-laws. Once the husband or his family members are arrested,
and subsequently bailed out, little motivation remains for the parties to try
and resolve their disputes by mediation. This may prove disadvantageous for the
wife in the long run who may not have a source of independent livelihood for
running her life in the future.

4.Appropriate place where mediation should be conducted.
The officials as well as the learned Government Advocate and other lawyers
present unanimously recommended that the Mediation Cell should not be at the
police station. The I.G. (Public Grievances) pointed out that the police officer
before whom the report is lodged lack proper training for conducting mediations
sessions. Also if the police officer refrains from arresting the accused persons
pursuant to the wife’s FIR, by attempting to mediate in the dispute between the
parties, even if it is a case of no injury, and even where he is only acting in
accordance with the general directions of the Court, questions about his
integrity are unnecessarily raised.

Moreover it is pointed out by the Secretary of the Legal Services Authority that
now Mediation or Conciliation Centres have been established in all the District
Courts. We, therefore, think that the mediation proceedings should be carried
out in the said Mediation Centre.

5.Need for time frame for concluding the mediation proceedings.

The I.G. (Public Grievances) and others present rightly pointed out that a time
frame must be laid down for concluding the mediation proceedings as when an
aggrieved wife approaches the police for relief, because she has been subjected
to cruelty. If the matter is unduly prolonged in the mediation process, the
delay could act as a shield to protect the accused from facing the penalty of
law, causing frustration and bitterness for the aggrieved wife. Notice should as
far as possible be served personally on the accused and the parties should be
directed to appear before the Mediation Centre within a week or 10 days of the
lodging of the report by the aggrieved wife or family members. Thereafter we
think, that as far as possible, the mediation proceedings should be concluded
within two months of the first appearance of both the parties before the
Mediation Centre.

6.Who should be the members of the mediation cell in the district?

The Mediation Cell in the district should be headed by the Secretary of the
Legal Services Authority in the district, (at present, the Civil Judge, Senior
Division has been made the Secretary), other panel or retainer lawyers appointed
by the District Legal Services Authority, other lawyers, who volunteer for
giving free services before the Mediation centre, especially female lawyers
should also be made members of the Mediation Cell. It is also desirable to have
three or four social workers (especially female) in the Cell. A female police
officer of the rank of Dy. S.P. may also be appointed an ex-officio member of
the Mediation Cell.

7.Procedure to be followed by the police when a report of a cognizable offence
under section 498A IPC or allied provisions is reported

The report regarding commission of cognizable offence under section 498A IPC or
other allied sections may be lodged at the concerned police station where the
incident takes place or at the ‘Mahila Thana’ especially created in the district
for investigation of such cases. The police officer concerned will get the
aggrieved woman medically examined for injuries if the same are present. If the
report has been lodged at some police station other than the Mahila Thana, the
injury report and relevant police papers shall be forwarded to the Mahila Thana
for investigation of the case, and in appropriate cases the investigating police
officer at the Mahila Thana may refer the matter to the mediation centre in the
Civil Court, and direct the complainant to be present at the mediation centre on
a fixed date 7 to 10 days thereafter. The accused should as far as possible also
be personally given notice to appear before the mediation centre on the date
fixed. We would also like the presence of trained social workers (especially
female) or legal aid panel lawyers to be present at the Mahila Thana for
counselling the aggrieved woman and her family members for first trying to solve
their dispute by mediation, when the case is registered at the mahila thana. The
notice to the husband and other family members should mention that in cases the
husband or the family members of the aggrieved wife fail to appear on the date
fixed or on future dates, as directed by the Mediation Centre or fail to comply
with any condition that may be imposed by the police officer or Mediation
Centre, steps shall be taken for arresting the accused. The accused husband or
other in-laws should be directed to report before the police officer on a date
two months after the date of first appearance before the Mediation Centre and
inform the Police Officer about the progress in the mediation. The in-charge of
the mediation proceeding may also direct the husband or other family members to
appear before the Police Officer at an earlier date fixed in case mediation has
failed or it has been successfully concluded and the parties concerned shall
appear before the Police Officer on the said date. It would also be open to the
complainant wife to inform the police officer about the progress (or lack of it)
of the mediation process. The notice should also clarify that in case mediation
is pronounced as unsuccessful at an earlier date, and information is given by
either party or the Mediation centre to the Police Officer, he may require the
presence of the accused husband or his relations at an earlier date. If
mediation has been successfully concluded, it will be open to the Police Officer
to submit a final report in the matter. In cases, where it has not been
successfully concluded and the Police Officer is of the view that arrest may not
be necessary in a particular case, he may direct the accused persons to obtain
bail from the Competent Court. In case, he is of the opinion that the arrest is
necessitated at a subsequent stage, it will be open to the Police Officer to
take such accused persons in custody. He should of course record his reason for
making the said arrest as provided under section 41 (1) (b) (ii).

8.Necessity of training to mediators.

We endorse the opinion of the intervening lawyers, the learned Government
Advocate, Sri Ashok Mehta, Organizing Secretary of the Mediation Centre of the
Allahabad High Court and the Government officials present, including the
Secretary of the Legal Services Authority, that training for mediators is a sine
qua non for effective mediation. The Organizing Secretary of the Allahabad High
Court Mediation Centre (AHMC) and Secretary of the U.P. Legal Services Authority
(UPLSA) stated that the centre and authority are prepared to impart training to
the mediators. We welcome this offer and direct that there should be
co-ordianation between the AHMC and UPLSA for giving effect to this offer. By
and by as the State Government is able to create a cadre of trainers for
mediation, their services may also be utilised for training mediators in the

We think training is necessary because the responses to our queries from the
subordinate district courts reveal the poor success rate in the cases referred
by the High Court or where the concerned subordinate court has itself initiated
the process of mediation. By contrast the success rate at the Mediation Centre
in the Allahabad High Court, which has independent trained mediators (usually
lawyers) is much higher. The first requirement for successful mediation is the
patience on the part of the mediator, and his willingness to give sufficient
time to the contesting parties and especially to the wife to express her bottled
up grievances. Thereafter, in a disinterested manner, the mediator should
encourage the parties to come up with solutions, giving useful suggestions for
bringing about reconciliation, as the mediator cannot impose his solution on the
The guidelines hereinabove have been spelt out by the Court because of the
specific request of the officials and lawyers present to spell out the terms of
the same, as guidance for the State government (esp. the home department), the
Legal Services Authority and the police for issuing appropriate circulars or
government orders.

(9) Should offences under section 498-A IPC be made compoundable?

We have received considerable feedback from subordinate judicial authorities
that unless the offence under section 498-A IPC is made compoundable, much
benefit cannot be derived by trying to bring about mediation between the
parties. A dilemma then arises before the concerned Court, (which cannot close
the trial because the spouses have compromised their dispute) or even before the
aggrieved wife, if she decides to settle her dispute with her spouse and in-laws
either by agreeing to stay with them or to part amicably, usually after
receiving some compensation. Even if she is no more interested in repeatedly
visiting the court for prosecuting the accused, in the absence of provisions for
compounding the offence, she has willy nilly to perjure by making a false
statement that her initial report was untrue or lodged under influence of X or
Y. If on the basis of this statement the trial Court acquits the husband and his
family members, and the aggrieved wife returns to her matrimonial home, in the
cases where she is again maltreated, if she lodges a fresh report, its
reliability will be open to question.

The Apex Court in Ramgopal v. State of M.P., 2010 SCALE 711 observed that an
offence under section 498-A IPC is essentially private in nature, and it should
be made compoundable if the parties are willing to amicably settle their
dispute. Directions were given to the Law Commission of India to consider the
matter and to make appropriate recommendations to the Government to bring about
suitable amendments in the statute.

In Rajeev Verma v. State of U.P., 2004 Cri.L.J. 2956, which was a decision given
by a bench in which one of us (Amar Saran J) was a member, a similar suggestion
was made to the Law Commission of U.P. to recommend to the State government to
make the offence under section 498-A IPC compoundable with the permission of the
Court under section 320 Cr.P.C. The reasons for the suggestion were that such
FIRs are often lodged in the heat of the moment, without reflection after a
sudden quarrel, and sometimes as a result of wrong advice or influences. But the
complaining wife, who usually has no source of independent livelihood (as a key
problem in our society is the lack of economic and social empowerment of women)
and is unable to provide for herself in the future, may have to suffer later if
the relationship with her husband is irrevocably ruptured due to the hasty
filing of the criminal case, particularly in view of the fact that the offence
is non-compoundable. To meet this situation B.S. Joshi v State of Haryana, AIR
2003 SC 1386, Manoj Sharma v State, 2008 SC(Suppl) 1171, and Madan Mohan Abbot v
State of Punjab, AIR 2008 SC 1969 recommended quashing of the complaint in
proceedings under section 482 Cr.P.C or in the writ jurisdiction where the
aggrieved wife compounded the offence. In the latter case it was observed that
where the dispute is purely personal in nature, (i.e. the element of the offence
being a crime against society is secondary), and the wife decides to compound
the offence, as there would be little likelihood of conviction, quashing of the
offence should not be refused on the hyper-technical view that the offence was
non-compoundable “as keeping the matter alive with no possibility of a result in
favour of the prosecution is a luxury which the Courts, grossly overburdened as
they are, cannot afford and that the time so saved can be utilized in deciding
more effective and meaningful litigation”

The following passage in paragraph 12 in G.V. Rao v L.H.V. Prasad, AIR 2000 SC
2474 has been cited with approval in B.S. Joshi:
“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 the 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 the family are also involved
with the result that those who could have counselled and brought about
rapprochement are rendered helpless on their being arrayed as accused in the
criminal case. There are many other reasons which need not be mentioned here for
not encouraging matrimonial litigation so that the parties may ponder over their
defaults and terminate their disputes amicably by mutual agreement instead of
fighting it out in a Court of law where it takes years and years to conclude and
in that process the parties lose their “young” days in chasing their “cases” in
different Courts.”

In Rajeev Verma however relying on B.S. Joshi it was mentioned that whilst the
trial could be quashed in an application under section 482 Cr.P.C or under
Article 226, being a fruitless prosecution where there was little likelihood of
conviction as the parties had settled their dispute, but the proper forum for
deciding the matter whether the compromise application was voluntary and bona
fide or whether it was coerced was the lower court which could decide whether it
was a fit case for granting permission to the wife to compound the offence under
section 320(2) Cr.P.C. This was only possible if the offence under s. 498-A IPC
was made compoundable with the permission of the Court.

A good option for providing recompense to the maltreated woman is “The
Protection of Women from Domestic Violence Act, 2005″ which provides for a gamut
of civil rights for the aggrieved woman who has entered into a domestic
relationship with a man, with or without marriage. Such civil rights include
“Protection orders” (section 18) prohibiting the respondent from committing any
act of violence, visiting the place of work, operating the common bank locker,
making telephonic contact etc. “Residence orders” (section 19), which restrain
the respondent from dispossessing a woman from the shared household, or from
alienating or renouncing his rights to the property or by directing him to
remove himself, or by providing alternate accommodation to the aggrieved woman
at the existing level. By providing “monetary reliefs” (sections 20 and 22) by
paying for loss of earnings or medical expenses, or loss due to destruction of
property by domestic violence, or for maintenance of the woman and her dependent
children, or by payment of compensation for causing injuries (including mental
torture). “Custody orders” (section 21) for custody of the child to the woman
(including visiting rights) for the respondent. Criminal proceedings under this
Act have been allowed only as a last resort, under section 31 when the
respondent commits a breach of a protection order, or where at the stage of
framing charges for breach of the protection order he finds that an offence
under section 498-A IPC has also been committed by the respondent.

The Act also provides under section 14 for the Magistrate to send a matter for
“counselling” before a registered “service provider,” who is qualified to
provide counselling in such matters to the contesting parties or to provide
shelter etc. to the aggrieved woman.

In the counter-affidavit dated 12.8.11 filed on behalf of the Home Secretary,
U.P., it has specifically been mentioned that the State government has given its
consent to the Union of India to make offences under section 498-A IPC
compoundable, and the letter of the Home (Police) Section-9 to the Union Home
Ministry dated 4.2.10 has been annexed. Whereas we appreciate this positive
attitude of the State government in not objecting to section 498-A IPC being
made a compoundable offence. However we find that Andhra Pradesh, by Act 11 of
2003 (w.e.f 1.8.03) has added section 498 A (wrongly described as 494 A) after
section 494 in the table in section 320(2) Cr.P.C. and has permitted the woman
subjected to cruelty to compound the offence with the permission of the Court,
but added a proviso that a minimum period of three months be allowed to elapse
from the date of application for compromise before a Court can accept the
request, provided any of the parties do not withdraw in the intervening period.

The U.P. government may consider bringing out a similar amendment, as it has
already expressed its opinion that the offence under section 498-A IPC be made

Before parting we must clarify that the Court is of the firm view that acts of
cruelty or violence against women have neither ceased, nor have they been
reduced, and the special provision for meeting this problem must be retained in
the statute book. We quote with approval the view expressed in paragraph 11 of
the recent Law Commission of India, Consultation Paper-cum-Questionaire
regarding section 498-A of Indian Penal Code:

“While the Commission is appreciative of the need to discourage unjustified and
frivolous complaints and the scourge of over-implication, it is not inclined to
take a view that dilutes the efficacy of s. 498-A to the extent of defeating its
purpose especially having regard to the fact that atrocities against women are
on the increase. A balanced and holistic view has to be taken on weighing the
pros and cons. There is no doubt a need to address the misuse situations and
arrive at a rational solution ? legislative or otherwise.”

List this case on 8.11.2011 before the regular bench to be headed by one of us
(Hon’ble Amar Saran J)

The State government through the Chief Secretary, U.P., the Principal Secretary,
(Home), U.P., Secretary Law/ L.R. U.P., Director General Police U.P., and
Member-Secretary, U.P. Legal Services Authority may issue appropriate guidelines
or circulars for laying down a system for proceeding in matters where reports
are lodged of commission of offences under section 498 A IPC where immediate
arrests may not be necessary, for laying down the appropriate criteria in this
regard, and for sending the matters for mediation before the mediation cells in
the Civil Courts, in accordance with the aforesaid directions of this Court. The
Principal Secretary, (Finance), U.P. may apprise the Court as to the provision
for finance for appointing social workers/panel lawyers at the Mahila Thanas,
for ensuring that appropriate training is given to the social workers, legal aid
lawyers, and concerned police officers for facilitating the mediation process,
for making available adequate infrastructure/ manpower at the mediation cells in
the Civil Courts, and for meeting expenses on other contingencies. Let the
aforesaid authorities submit their compliance reports within 4 weeks. We would
also like reports from all the Secretaries of the District Legal Services
Authorities to submit their compliance reports (through the District Judges) for
getting the aforementioned minor matters relating to offences under section 498
A IPC settled through mediation and the difficulties they encounter or forsee in
complying with the directions of this Court by the next listing. The State
government is also directed to submit its report on the next listing on the
suggestion of the Court to take steps for making the offence under section 498-A
IPC compoundable with the permission of Court by amending section 320 Cr.P.C in
U.P. as has been done in the case of Andhra Pradesh. Registrar-General is
directed to forward copies of this order within a week to the Chief Secretary,
Principal Secretary, (Home), Law Secretary/LR, U.P., Principal Secretary
(Finance), U.P., D.G.P., U.P., Member-Secretary, U.P., Legal Services Authority,
U.P., Secretaries/ Civil Judges (Senior Division) through District Judges in all
districts in U.P., Sri Ashok Mehta, Organizing Secretary, Allahabad High Court,
Mediation Centre, Sri Pankaj Naqvi, and Sister Sheeba Jose, Advocates for the
intervenors, Government Advocate, U.P. and other advocates and officials present
in the hearing on 8.8.11 for information and compliance.

Order Date :- 30.9.2011