Excerpts from High court and Supreme Court Judgements regarding misuse of dowry harassment acts.

Following are the excerpts from High court and Supreme Court judgements regarding misuse of dowry harassment acts.

Sushil Kumar Sharma Vs. Union of India (UOI) * Honourable Judges: Arijit Pasayat and H.K. Sema, JJ.
*Date Of Judgment:Jul 19 2005 * Case No: Writ Petition (C) No. 141 of 2005

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 ignomy 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 license 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 legal terrorism 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 a re 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.

Dastane v. Dastane, AIR 1975 SC 1534

The foundation of a sound marriage is tolerance, adjustment and respecting one another. Tolerance to each other's fault to a certain bearable extent has to be inherent in every marriage. Petty quibbles, trifling differences should not be exaggerated and magnified to destroy what is said to have been made in heaven. All quarrels must be weighed from that point of view in determining what constitutes cruelty in each particular case and as noted above, always keeping in view the physical and mental conditions of the parties, their character and social status. A too technical and hyper-sensitive approach would be counter-productive to the institution of marriage. The Courts do not have to deal with ideal husbands and ideal wives. It has to deal with particular man and woman before it. The ideal couple or a mere ideal one will probably have no occasion to go to Matrimonial Court. (See Dastane v. Dastane, AIR 1975 SC 1534).

Supreme Court Orders On The Powers Of the Police To Arrest - DATE OF JUDGMENT 25/04/1994,
VENKATACHALLIAH, M.N.(CJ) , PETITIONER:JOGINDER KUMAR Vs. RESPONDENT: STATE OF U.P.
http://judis.nic.in/supremecourt/qrydisp.asp?tfnm=11479

No arrest can be made because it is lawful for the police officer to do so. The existence of the power to arrest is one thing. The justification for the exercise of it is quite another.The police officer must be able to justify the arrest apart from his power to do so. Arrest and detention in police lock-up of a person can cause incalculable harm to the reputation and self esteem of a person. No arrest can be made in a routine manner on a mere allegation of commission of an offence made against a person. It would be prudent for a police officer in the interest of protection of the constitutional rights of a citizen and perhaps in his own interest that no arrest should be made without a reasonable satisfaction reached after some investigation as to the genuineness and bona fides of a complaint and a reasonable belief both as to the person's complicity and even so as to the need to effect arrest. Denying a person of his liberty is a serious matter. The recommendations of the Police Commission merely reflect the constitutional concomitants of the fundamental right to personal liberty and freedom. “There must be some reasonable justification in the opinion of the officer affecting the arrest that such arrest is necessary and justified. Except in heinous offences, an arrest must be avoided if a police officer issues notice to person to attend the Station House and not to leave the Station without permission would do.”

THE HON'BLE SRI JUSTICE P. SWAROOP REDDY Criminal Petition No. 6642 of 2007 22-11-2007
Kamireddy Mangamma and others State of AP represented by the Public Prosecutor

8. Before parting with the petition, I feel it desirable to observe that there is rampant misuse of S.498-A IPC. False complaints are given against kith-and-kin of the husband, including the married sisters and their husbands; unmarried sisters and brothers and married brothers and their wives. There are instances where even young children, aged below ten years, were also implicated in the offences of this nature. My experience, while sitting in matrimonial Bench revealed that several families are ruined; marriages have been irretrievably broken down and chances of reconciliation of spouses have been spoiled on account of unnecessary complaints and the consequent arrest and remand of the husbands and their kith-and-kin. To discourage this unhealthy practice, it is desirable that anticipatory bail is granted very liberally in all cases of S.498-A IPC, particularly when the petitioner/accused is not the husband of the complainant and when the allegations are not very specific and prima facie do not inspire confidence.
9. Section 498-A IPC is incorporated by the Legislature basically in the interest of women and to safe guard them from harassment. But, it has become somewhat counter productive. In several cases, women are harassed, arrested and humiliated on the complaints given under section 498-A IPC. The truth or otherwise of the allegations is subject to proof. For giving complaint absolutely no authentic and prima facie material like medical evidence is required, but on such complaints, in several cases, number of women are being arrested. In cases of arrest of married young women, they might face problems from their husbands and in-laws; in case unmarried women are arrested their marriage prospects would be badly affected and if government servants are arrested their service prospects are affected. In the present case, only one woman is the alleged victim; but at least four women might have to go to jail even before trial, effecting their reputation, subjecting them to rude treatment at Police Station etc.
10. Only in cases where, strong and authentic evidence like letters written by the accused-husband to the spouses or their parents etc., are available and where there is sufferance of serious injuries or death of the victim only, perhaps, it is desirable to refuse anticipatory bail, that, too, for the accused-husband. Another important aspect is in this type of cases; there is no chance of witnesses turning hostile or being influenced by the accused, as the witnesses would invariably be the kith-and-kin of the alleged victim like herself and her parents etc. These aspects have to be kept in view, while dealing with the cases of anticipatory bail/bail in cases of offences involving section 498-A IPC.



IN THE HIGH COURT OF DELHI AT New Delhi Date of Decision: February 23, 2007
CRL.M.C.7262/2006 by JUSTICE SHIV NARAYAN DHINGRA

Now-a-days, exorbitant claims are made about the amount spent on marriage and other ceremonies and on dowry and gifts. In some cases claim is made of spending crores of rupees on dowry without disclosing the source of income and how funds flowed. I consider time has come that courts should insist upon disclosing source of such funds and verification of income from tax returns and police should insist upon the compliance of the Rules under Dowry Prohibition Act and should not entertain any complaint, if the rules have not been complied with.
The Metropolitan Magistrates should take cognizance of the offence under the Act in respect of the offence of giving dowry whenever allegations are made that dowry was given as a consideration of marriage, after demand. Courts should also insist upon compliance with the rules framed under the Act and if rules are not complied with, an adverse inference should be drawn. If huge cash amounts are alleged to be given at the time of marriage which are not accounted anywhere, such cash transactions should be brought to the notice of the Income Tax Department by the Court so that source of income is verified and the person is brought to law. It is only because the Courts are not insisting upon compliance with the relevant provisions of law while entertaining such complaints and action is taken merely on the statement of the complainant, without any verification that a large number of false complaints are pouring in.
6.I consider that the kinds of vague allegations as made in the complaint by the petitioner against every member of the family of husband cannot be accepted by any court at their face value and the allegations have to be scrutinized carefully by the Court before framing charge.

The direction was given by Chief Justice of Jharkhand Mr V. K. Gupta on 11.07.2001 against a case "Birendra Jha v/s The State of Jharkhand , A.B.A No. 4654 of 2001".

On the question of grant of bail to accused I may also observe that there is another category of offences where normally bail should be granted and refusal should be an exception. I’m talking of offences under Section 498A I.P.C. and Section 4 of the Dowry Provision Act, 1961.… In those cases where it is manifestly clear, on a plain reading of the police report or the contents of the private complaint that neither any grievous injury has been inflicted upon the alleged victim nor is there any other clear proof of the alleged victim having physically suffered and that there is also no serious allegation supported with positive proof of dowry having been demanded in the immediate proximity of the marriage or thereabout, the bail should be granted. It happens quite often that in ordinary matrimonial disputes or where there is some discordant note in a matrimonial relationship, the woman as an alleged victim sets in motion 498A or Sec. 4…

IN THE HIGH COURT OF DELHI AT NEW DELHI + CRL. R 462/2002 DATE OF DECISION: May 19, 2003
Savitri Devi .............Petitioner. Versus Ramesh Chand and Ors. ............Respondents HON'BLE MR. JUSTICE J.D. KAPOOR

21.Before parting, I feel constrained to comment upon the misuse of the provisions of Section 498A/406 IPC to such an extent that it is hitting at the foundation of marriage itself and has proved to be not so good for the health of the society at large.To leave such a ticklish and complex aspect of proposition as to what constitutes `marital cruelty' and `harassment' to invoke the offences punishable under sections 498A/406 IPC to a lower functionaries of police like Sub Inspectors or Inspectors whereas some times even courts find it difficult to come to the safer conclusion is to give the tools in the hands of bad and unskilled masters.
22. This Court has dealt with thousands of cases and matters relating to dowry deaths and cases registered under Section 498A./406/306 IPC arising out of domestic violence, harassment of women on account of inadequate dowry or coercion of the woman for not fulfilling the demand of dowry and hundred of divorce cases arising therefrom. Experience is not so happy nor is implementation or enforcement of these laws is anything but satisfactory or punctilious.
23.These provisions were though made with good intentions but the implementation has left a very bad taste and the move has been counter productive. There is a growing tendency amongst the women which is further perpetuated by their parents and relatives to rope in each and every relative- including minors and even school going kids nearer or distant relatives and in some cases against every person of the family of the husband whether living away or in other town or abroad and married, unmarried sistes, sister-in-laws, unmarried brothers, married uncles and in some cases grand-parents or as many as 10 to 15 or even more relatives of the husband. Once a complaint is lodged under Sections 498A/406 IPC whether there are vague, unspecific or exaggerated allegations or there is no evidence of any physical or mental harm or injury inflicted upon woman that is likely to cause grave injury or danger to life, limb or health, it comes as an easy tool in the hands of Police and agencies like Crime Against Women Cell to hound them with the threat of arrest making them run here and there and force them to hide at their friends or relatives houses till they get anticipatory bail as the offence has been made cognizable and non-bailable.Thousands of such complaints and cases are pending and are being lodged day in and day out.
24.These provisions have resulted into large number of divorce cases as when one member of the family is arrested and sent to jail without any immediate reprieve of bail, the chances of salvaging or surviving the marriage recede into background and marriage for all practical purposes becomes dead. The aftermath of this is burdensome, insupportable and miserable more for the woman. Remarriage is not so easy. Once bitten is twice scared. Woman lacking in economic independence starts feeling as buden over their parents and brothers. Result is that major bulk of the marriages die in their infancy, several others in few years. The marriage ends as soon as a complaint is lodged and the cognizance is taken by the police.
25.It was primarily a social problem and social evil but has been allowed to be dealt with iron and heavy hands of the police. These provisions have tendency to destroy whole social fabric as power to arrest anybody by extending or determining the definition of harassment or cruelty vests with the lower police functionaries and not with officers of higher rank who have intellectual capacity to deal with the subject.
29.To start with, marital offences under Sections 498A/406 IPC be made bailable , if no grave physical injury is inflicted and necessarily compoundable. If the parties decide to either settle their disputes amicably to salvage the marriage or decide to put an end to their marriage by mutual divorce, they should be allowed to compound the offences so that criminal proceedings don't chase them if they want to start their marital life afresh or otherwise. The past should not haunt them nor the hatchet they have buried should be allowed to be dug up and mar their present life or future married life.
30.Lastly in view of sensitivity of such offences and in order to avoid clumsiness in human relations and viewing this problem from human and social point of view, and the law as it stands today it is required that the investigation into these offences be vested in civil authorities like Executive Magistrates and after his finding as to the commission of the offence, cognizance should be taken. Till such a mechanism is evolved, no police officer below the rank of ACP for the offences under sect on 498A/406 IPC and D.C.P for the offence under Section 304-B IPC i.e dowry death should be vested with investigation and where minor school going children are named, they shall not be arrested and be sent to the court for taking cognizance and futher proceedings. Their arrest ruin their future life and lower them in their self esteem. This court has even dealt with the bail applications and prosecution of children merely for the fact that their names also figured in the complaint lodged by the wife. In certain cases even grand-parents of the husband who are in their eighties and nineties suffer this traumatic situation.
31.There is growing tendency to come out with inflated and exaggerated allegations roping in each and every relation of the husband and if one of them happens to be of higher status or of vulnerable standing, he or she becomes an easy prey for better bargaining and blackmailing.
32. These ground realities have pursuaded this court to recommend to the authorities and law makers to have a review of the situation and legal provision.
33. Copy of the order be sent to Law Secretary, Union of India.

IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD B. S. A Swamy and Dr. G. Yethirajulu, JJ
A. A. O. No. 1039 of 2001-Decided on 9-7-2002 Saritha Vs R.Ramachandra reported in (I) (2003) DMC 37 ( DB )

6 “The court would like to go on record that for nothing tech educated women are approaching the courts for divorce and resorting to proceedings against in-laws under section 498a , IPC implicating not only the husbands but also their family members whether in India or Abroad. This is nothing but misus eof the beneficial provision intended to save the women from unscrouplous husbands . It has taken a reverse trend now. In some cases this kind of actions is coming as a formidable hurdle in the reconciliation efforts made by either well maening people or the courts.and the sanctitiy attached to the marriage in Hindu Religion and the statutory mandate that the courts try to save the marriage through concilliatory efforts till last , are being buried neck-deep . It is for the law commision and the parliament either to continue that provision ( section 498a IPC ) in the same form or to make that offense non cognisable and bailable so that ill-educated women of this country do not misuse the provision to harass innocent people for the sin of contracting marriage with egositic women “
7. it is for the Law Commission and the Parliament either to continue that provision (Section 498-A I.P.C) in the same form or to make the offence a non-cognizable one and a bailable one so that the ill—educated women of this country and their parents do not misuse the provision, to harass innocent people for the sin of contacting marriage with egoistic women. We have no hesitation to hold that if this situation is continued and longer the institution of marriage and the principle one man for woman will vanish into their air.

IN THE HIGH COURT OF DELHI AT NEW DELHI Date of Order: 01.11.2007
Crl.Appeal No. 696/2004 Narender Kumar and Anr. ... Appellants JUSTICE SHIV NARAYAN DHINGRA

19. It must be understood that god had not made any two persons same with the same ideas, qualities and it must be acknowledged that marriages do fail and there is a mismatch not only in arranged marriages but even in love marriages. The mismatch is dis covered during the continuation of married life. No doubt poverty is a curse and a poor man has to suffer in the society at different fronts but I consider that despite poverty being a curse, poverty cannot be made a crime. Neither the failed marriage can be made a crime. In this case, the poverty was not only a curse for the boy but it made to be a crime since due to his poor condition he could not provide all that which he should have provided to the wife and the wife ultimately saw to it that not only he but everyone of his other family members land in jail. Every marriage that fails does not fail due to dowry demand or cruelties. The marriages do fail for several other reasons including the reason of incompatibility of the persons. A failed marriage is not a crime however, the provisions of Section 498A are being used to convert failed marriages into a crime and the people are using this as tool to extract as much monetary benefit as possible. In many cases, where FIRs are filed under Section 498A IPC, petitions are being filed under Section 482 Cr.P.C. for quashing of FIRs after settlements between the parties and the allegations made of cruelties etc. are withdrawn the moment a lump sum payment is received. Involving each of the family members of the husband is another arm in the armory of the complainants of failed marriages. Not only close relatives but distant relatives and even neighbours are being implicated under Section 498A and other provisions of IPC in cases of failed marriages. The Courts must be very cautious during trials of such offences. In all these cases in the name of investigation, except recording statement of complainant and her few relatives nothing is done by police. The police does not verify any circumstantial evidence nor collect any other evidence about the claims made by the complainant. No evidence about giving of dowry or resources of the complainant's family claiming spending of huge amounts is collected by the police. This all is resulting into gross misuse of the provisions of law. The investigating agency in all such cases must collect all circumstantial and other evidence in respect of claims made by the complainant and similarly Courts should always be careful in considering the credibility and truthfulness of the statement of the complainant and relatives.

20. From the entire documents and the testimony of the witnesses I come to the conclusion that it is an unfortunate case where the complainant by making false statement implicated the entire family in offences of under Section 307 and 498 A IPC. The Trial Court was not cautious enough to even look to admitted documents on record before convicting the family on mere statement of an estranged wife. Trial Courts should guard themselves from being swayed by emotions. They should consider entire circumstances and should carefully analyze the entire evidence. Poverty should not be allowed to become a crime. Neither failed marriage be permitted to be a crime.

IN THE HIGH COURT OF DELHI AT NEW DELHI Crl.M.C. No.3920/2003 Anupam Sharma ........ Petitioner through: Mr.S.K.Dubey, Adv. DATE OF DECISION: 23.08.2007 CORAM: Hon'ble Mr.Justice Pradeep Nandrajog

57. With the plethora of laws operating in the filed of domestic disputes, Courts have been choked by multiplicity of proceedings arising out of a matrimonial dispute.
58. Experience shows that at the drop of the hat as many as 5 substantive proceedings are initiated simultaneously. The first is a complaint for dowry harassment and misappropriation of streedhan. It results in registration of a FIR under Section 498-A/406 IPC. Parties fight pitched battles whether anticipatory bail should be granted to the in-laws of The complainant. Not one but multiple anticipatory bail applications are filed because of the usual tendency to rope in virtually every members of the family of the in-laws. Married sisters of the husband, their husbands and even married brothers and their wives who are residing separately are implicated. In some cases as many as 10 to 15 applications for seeking anticipatory bail are filed. Simultaneous proceedings under Section 125 Cr.P.C. are initiated. Proceedings are also initiated under the Protection of Women From Domestic Violence (Act) 2005. Apart from the said 3 proceedings which are penal in nature, a divorce proceeding is initiated in which application under Section 24 of the Hindu Marriage Act springs out. If there is a minor child born to the warring couple, a 5th proceeding gets initiated under Hindu Adoption and MaintenanceAct.
59. From these 5 plenary proceedings spring appeals and revisions against interlocutory orders.
60. Currently dealing with criminal matters I notice that out of 10 fresh applications listed before me seeking bail or anticipatory bail, 9 relate to matrimonial discords. My previous roster allocation pertained to appeals, civil revisions and petitions under Article 227 of the Constitution of India against interlocutory orders passed by the Civil Judges. 2 out of 10 petitions pertained to interlocutory orders granting interim maintenance under Section 24 of the Hindu Marriage Act or interim custody or visitation right pertaining to a minor child.
61. Choked with matrimonial litigation it is but the desire of every Judge to try and resolve the matter by amicable consent of parties for the reason a single settlement results in multifarious litigation going to an end.
62. Energies of the citizens of India is better utilized if the same is channelized for a constructive purpose and not court litigation.
63. Mediation and Conciliation is being encouraged world over for the reason, world over courts are being choked on account of not only excessive litigation but, with the spread of education, greatest awareness of rights by the citizens of the States.
64. Order XXXII-A was introduced in the statute book. Rule 3 thereof enjoins upon every court to endeavour, herever it is possible, to assist the parties in arriving at a settlement where the dispute concerns a family.
65. Rule 1 of Order XXXII-A encompasses every suit or proceedings for matrimonial relief.
66. Although a criminal case is seen as a dispute between the offender and the State, it would be na?ve to assume that all offences actually concern the State. Quite a few penal offences, eg. defamation, are of a civil nature.
67. Several criminal proceedings are initiated with an intention to bully the opposite party in a civil suit. Judicial opinions are replete with decisions where it is noted that criminal proceedings are being pressed strictly with a view to settle personal scores.
68. As the criminal system groans under weight of cases filed,alternative solutions are being found world over. Compounding of offences, plea bargaining etc. are found in the criminal justice delivery system in a large number of countries including India.
69. 'Restorative justice' may be used as a synonym for mediation. The object and nature of restorative justice aims at restoring the interest of the victim. Involvement of the victim in the settlement process is welcome in the process of restorative justice. It is a process of voluntary negotiation and concertation, directly or indirectly between the offender and the victim.