Family and Criminal Lawyers in Chandigarh

Chandigarh Family and Criminal Lawyers – Interpretation of latest SC judgment on section 498A

The Supreme Court’s guidelines in Rajesh Sharma and others vs. State of Uttar Pradesh as well as another in cases relating to complaints U/S 498A of the Code of Criminal Procedure has left the entire nation in immense confusion. Ours is a country in which the rights of women are hoped to be protected by the courts and the limited understanding of some provisions in particular expanded by them. But the abrupt need to regress in such a situation comes as a rude shock.

The guidelines state that, complaints under U/S 498A would be referred to Family Welfare Committees, who would then submit their reports to the District Legal Service Authority and that the accused shall not be arrested until such a time. These mandatory guidelines seek to defeat the very purpose the section serves. It most certainly is justifiable for the Courts to bring about changes and improvisations in the form of checks and balance in places where the law is misused but considering the extent that a harassed woman would have to go through now, only to get a case registered, is unfathomable.

As the guidelines come from a lawyer in Chandigarh who represents men, more than women in family disputes, a realistic and impartial view may be expected. Justice is sought not in the name of feminists or misandrists but all those who have a conscience. Such misguided guidelines are the result of the ground realities not having been adequately reflected in any substantial study. While it is agreed that the misuse of Section 498A is quite rampant, it only comprises of a miniscule percentage when compared to cases that are actual and genuine. All the genuine cases tell horrifying tales. These are tales of not what the harassed women were subjected to in their marital homes but horrifying tales of what the women encountered only to register an F.I.R.

The initial few days are spent running from pillar to post, shuttling between different police stations to plead for justice. She is given the reason of wrong jurisdiction and conveniently thrown out even when the law stands clear on this. Next, she is told to go to a women’s police station, where she is asked to get the A.C.P’s approval. The whole episode is constructed assuming that all the officers are actually present in their offices, when in reality, many trips have to be made just to get a meeting with the relevant officer. Only when the process of shuttling from the office of the Commissioner to the final police station completes is the F.I.IR. finally registered, but not without much reluctance. The police ask the woman to then make changes to the language of the complaint so that it suits their convenience. The complaint is then hurriedly filed in the local language, using legal jargon that the distressed woman cannot understand. The witness statements are often recorded incorrectly on purpose so that it may seem like a third person account of the story rather than actual happenings as recorded by someone who experienced it. In the whole process, the woman does not realize that her case has already been misrepresented and hence weakened in front of the magistrate.

Difficult times have only just begun. The end seems like it is nowhere in sight. The investigation stands incomplete and the charge sheet is not submitted on time for the magistrate to begin the trial of the case. Without a set time frame to guide the case, the victim’s agony only worsens from here. The woman who has no means to support herself carries her already dust-laden pockets to court, in the hope that she will at least find justice at the altar of the law. In the meantime, it is quite obvious that the husband and his family have already moved the law to their side, securing bails and protecting themselves. The victim is left in the hands of a Public Prosecutor and her case will be heard before him/her. Since the prosecutor only focuses on what is written in the file placed in front of him/her, the victim is treated with contempt and her case is given no time at all. There is no denying that there are Public Prosecutors who have done their jobs beyond excellence but it should be noted that most prosecutors have no time for the thousands of cases that fall into their laps.

The victim makes it a point to attend each and every hearing, even when she is ill-treated by the court peon, the prosecutor and even the magistrate at times. The husband and his family though, never show up in court. Exemption applications are filed by their lawyers which the magistrate happily entertains. In addition to being the victim, the woman is now subjected to the additional torture of innumerable court hearings, rounds to the police station etc. Even after 2 long years, justice is nowhere in sight. The guidelines issued by the Supreme Court in Rajesh Sharma and others vs. State of Uttar Pradesh and another direct the lower Courts to exempt the Accused from appearing in person and even allow him the facility of video conferencing. Some men do indeed have it all. While the luxury of exemption applications already existed men, the husband can now readily contest the issue from the comfort of his own home and sofa that probably the wife’s family was made to buy when she was to get married.

The already traumatized victim is left alone through all of this. The accused has a lawyer at his beck and call and they bully the woman in court. The victim has no one to turn to as the Public Prosecutor remains indifferent to her and the magistrate just wants to deal with one case less. This situation makes the woman consider the possibility of seeking settlement through mediation. In exchange for charges against the accused to be dropped, the woman is offered a paltry alimony. The magistrate, as well as the mediator, decides to advise her on her “best” possible interests and tell her that she should keep her whole life in mind and not just the case at hand. She is also instructed to get remarried and make a fresh start in life.

The victim, who is still expecting justice, takes no interest in the monetary compensation being offered to her. It is explained to her that putting her husband behind bars will not resolve the issues but only create all the more issues. Where would she live and what would she do to make a living for herself are some of the questions that are raised. The victim is also given the warning that she may not win the case at all and her husband will be left scot-free. In some cases the victim forced to withdraw the complaint she had made, forced to file a quashing petition in front of the High Court and then coerced into living with the husband yet again, probably hoping that harassment will no longer pose to be a problem. No matter what angle the case is viewed from , the victim always stands to lose.

The victim is left baffled with a million relevant questions. What is the purpose of courts? Are laws not designed to punish those who are guilty? Why are people eager to settle disputes rather than conduct trials? Mediation is sometimes used to calmly settle civil disputes as well as matrimonial disputes in the Family Court. Forcing the route of mediation on cases that are clearly criminal is akin to mocking the law and justice. In the rare event that cases do proceed and even come to a conclusion, most probably dropping all charges against the accused for lack of evidence, these do not reach the Appellate Court. After years and years of hopeless hope the victim is only left exhausted and depends on the State to guide justice to her. Which, itself, could be too much to ask for.

To justify certain guidelines of the Supreme Court, we must be accept that the number of frivolous cases have increased over time and that there is an urgent need to stem its misuse. This was remedied and curtailed already in Arnesh Kumar vs. State Of Bihar & another wherein the Supreme Court directed the police not to register the F.I.R. immediately on 498A complaints. The police were first told to call the parties, talk to both of them, ascertain whether or not the complaint was genuine and only then proceed. The police were also given directions not to arrest any aged in-laws. This process mentioned above is followed by most Police Stations in the country. It isn’t as easy to register an F.I.R. U/S 498A today as it was several years ago. Therefore, there seemed no need for a new system to be brought in which would lead to emanation of stench from various levels of corruption, influence and red tape. For a victim to wait for a month, expecting a positive report from the committee, then from the Legal Services Authority, then deflated and broken from within about the negative result and then what? Where is she to go?

Registering an F.I.R. U/S 498A today is not as easy as it was several years ago. Hence, it did not seem urgent for a new system to be put in place; a system that would release the stench of corruption from various levels, red tape and influence. Therefore, a victim would not have to wait for a whole month, in hopes of receiving a positive report from the committee and then from the Legal Services Authority too. Where should a victim head to in such a case?

Having separate courts for such cases is the need of the hour. This was supposed to be implemented long ago but magistrates who deal with matters of 498A or domestic violence are overburdened with criminal cases of other nature. Considering the acute shortage of courts and judges, the number of cases in court pile up by the hour, which leads to complainants feeling pressurized to settle. In case the cases are dealt with and determined within a period of three to six months, the complainant or the accused would not be harassed or affected by the proceedings. It most certainly is the delay gives rise to issues. Husbands who have been accused ridicule their wives when the case is left pending in court. They assert that they would go scot-free because, as per statistics, only 2% of the cases result in conviction of the husband. The poor conviction rate is the result of subpar recording of statements, conducting trials improperly, victims being ill-treated in court, and unwarranted and excessive time to wind up a trial. These are the factors that contribute to the abysmal conviction rate, not the innocence of those accused.

To draw a parallel here, the RTE Act was introduced to give the children who are lesser privileged an opportunity to study in exemplary private schools. However, instead of making government schools better and effective and bringing the middle class children to study in government-run schools, the Act has rendered all government schools ineffective, with many of them being on the verge of shutting down. Instead, what has ensued is corruption of a new kind where seats reserved under the Act are being saved for children of privileged families in return for money. The lesser privileged children are made to pay an arm and a leg only to face peer pressure and humiliation once they enter the gates of private schools. At times, when we wish to set something right from wrong, it may inadvertently go from bad to worse. If there ever was a case that needed re-determination urgently, it is this one.

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