It is most refreshing to note that the Allahabad High Court has taken a very courageous stand in a learned, laudable, landmark and latest judgment titled Mukesh Bansal v State of UP in Criminal Revision No. 1126 of 2022 with 1187 of 2022 and with 1122 of 2022 has issued certain guidelines/safeguards to prevent the misuse of Section 498A of the Indian Penal Code (IPC). It must be noted that one of the most significant guidelines issued by the Court clearly states that after the registration of a First Information Report (FIR) under 498A IPC, no arrest or coercive action should be taken against the accused during the cooling-off period of two months. During this period, the Court has ordered that the issue should be referred to a Family Welfare Committee (FWC). It deserves mentioning that Section 498-A punishes a woman’s husband or his relatives if they subject her to cruelty.
To start with, this brief, brilliant, bold and balanced judgment authored by a single Judge Bench comprising of Hon’ble Justice Rahul Chaturvedi of Allahabad High Court sets the pitch in motion by first and foremost putting forth in para 1 that, “Heard Sri V.P. Srivastava, learned Senior Advocate assisted by Sri Rajiv Nayan Singh and Sri Ritukar Gupta learned counsel for the revisionists, Sri Raj Kumar Kesari, learned counsel for opposite party no. 2 and learned A.G.A for the State.”
To put things in perspective, the Bench then envisages in para 3 that, “Coincidentally, all the aforesaid three revisionists, are assailing the legality and validity of the order dated 03.03.2022 through their respective revisions mentioned above whereby learned Additional Sessions Judge (Fast Track Court-I), Hapur, by three different orders of the same date i.e 03.03.2022, have rejected all the discharge applications of the revisionists under Section 227 Cr.P.C. in S.T. No. 19 of 2020 (State v. Manju Bansal and others) arising out of Case Crime No. 567 of 2018, under Sections 498A, 504, 506, 307 and 120B IPC and ¾ of the Dowry Prohibition Act, P.S. Pilakhuwa, District Hapur.
Since, order dated 03.03.2022 has been passed on three different applications in the same Sessions Trial, therefore, for the sake of brevity and convenience, all the aforesaid three revisions are clubbed together and decided by a common judgment by this Court.”
Without mincing any words, the Bench then briefly states in para 4 that, “As per prevailing practice nowadays in the society mostly in the cases of matrimonial discord, misunderstanding and incompatibility between the married couples, results into ever abhorring FIR. Here too, it seems to be a repetition of the same practice. In the instant case, the FIR was lodged by none other than the wife Ms. Shivangi Bansal herself against her husband as well as her in-laws. From the perusal of the FIR, it is borne out that for the incident of 04.10.2018, the present FIR came into existence on 22.10.2018 lodged at Police Station Pilkhua, District-Hapur (native place of Ms. Shivani Bansal) against five named accused including husband and his relatives. In addition to above named accused persons, two more namely Chirag Bansal brother-in-law (devar) and Smt. Shipra Jain, married sister-in-law (nanad) were also roped in these offences.”Quite glaringly, the Bench then minces no words to enunciate in para 8 that, “The story narrated in the FIR is not only abhorring, full of dirt, filth and venomous accusations where the informant fiercely abused her own husband and in-laws by using all the ways and means in the tone, tenor and texture in the extreme manner. The graphic and vivid descriptions of the incidents without any shame or hitch of any sort which, speaks out volumes of mental condition and amount of venom and poison in the mind of the informant. She without mincing any word, rather exaggerating the incident to manifolds, had vomited the snide before the Court. Interestingly, general and sweeping allegations have been fastened against all the family members for committing sodomy, attempt to rape and illegal abortion etc. upon all the family members with special focus upon her husband, Sahib Bansal.”
Be it noted, the Bench then observes in para 26 that, “I have perused the statement carefully. Being the youngest among the children of Rajesh Kumar Goyal and Sandhya Goyal, opposite party no.2 completed her B.Com Hons. From Sri Ram College of Commerce, New Delhi University. She is aged about 28 years and got married with Sahib Bansal on 05.12.2015. Besides Mukesh Bansal and Manju Bansal, she has included Chirag Bansal, unmarried devar and Shipra Jain, married nanad (sister-in-law). The couple were blessed with daughter Raina Bansal. The date of incident is 03.04.2018 and from the 161 Cr.P.C. statement, its questionnaire and 164 Cr.P.C. statement, it is abundantly clear that on the fateful day, opposite party no.2 along with her husband and Raina Bansal were at the residence residing at 130, First Floor, Rajdhani Enclave, Pitampura, New Delhi. So far as parent-in-law are concerned, she states that her devar Chirag also resides with her parent-in-law at Kapil Vihar, Pitampura, New Delhi. Both of them are in distinct domestic and separate entity on 30.04.2017. She has made severe allegations of assault and unnatural sex with her upon her husband and in this questionnaire, she had made completely sweeping allegations of having sexual favours upon her own father-in-law and brother-in-law on unspecified date and time. Though, she has levelled omnibus allegations of demanding additional dowry upon all the named accused persons. In addition to this, there was also accusation with regard to forcible abortion and second time pregnancy. But its accusation got flat when the Investigating Officer inquired from Dr. Amita Agrawal, her Gynaecologist who in no uncertain terms, gave the statement to the I.O. of the case that the second abortion was made on her own acceptance and willingness. There was nothing like forced abortion. However, in her statement, learned counsel for the complainant has tried to defend the orders of learned Additional Sessions Judge, Hapur that in parcha no. 17, the statement of Rajesh Kumar Goyal and Sandhya Goyal was recorded in which they stated that both of them also demanded additional dowry and became physical with her on this score. LEGAL DISCUSSION:-
I have perused the order impugned passed by Additional Sessions Judge, Fast Track Court, Hapur dated 03.03.2022 and while rejecting the discharge application, it has been mentioned:
“Case Diary ke parcha no. 17 par gavahan Rajesh Kumar va Smt. Sandhya Goyal ke bayan antargat 161 Cr.P.C. me abhiyukt dwara pidita ke sath dahej ki maang ko lekar marpeet ki gayi aur pidita ke sath Sahib va saas va sasur dahej ki maang karne ka kathan kiya hai. Vivechak dwara vivechana ke dauran ekatrit kiye gaye sakshyo ke aadhar par, prarthi/abhiyukt Mukesh Bansal ke virudh antargat dhara 498-A, 323, 504, 506, 307, 120B IPC va ¾ D.P. Act me aarop patra preshit kiya gaya hai.”It is indeed unfortunate that the learned trial Judge has consciously ignored the plethora of evidence collected by the I.O. during investigation that Mukesh Bansal and his wife are residing separately since 30.04.2017 and they have got no occasion to demand additional dowry. Moreover, at some places, there is demand of Rs. 20 lacs and at some place, it has been swelled to Rs 50 lacs??? In addition to this, there is general and sweeping allegation without any material particulars of demand of dowry by the parent-in-law makes the entire prosecution story a doubtful and revengeful proposition. Still, the learned Sessions Judge has picked up few lines in 161 Cr.P.C. statement ignoring the rest of the averments and material caste a serious aspersion upon the order impugned.”
It is worth noting that the Bench then mandates in para 31 that, “Therefore, the Court is of the opinion that while deciding the present issue, the Court should not take into these graphical description of the accusation made by the complainant and simply over-look these graphic and distressful allegations made by a lady who after receiving legal advice, pasted those dirt and filth upon her husband and other family members. The interesting feature is that she has been unable to substantiate those allegations even at the time of investigation and these allegations were found false and the sections related to it were dropped. The Court records its strongest exception to such type of language used by the informant. The language of the FIR should be decent one and no amount of atrocities faced by the informant, would justify her to use such type of sarcastic expressions. FIR/complaint is the gateway of any criminal case even soft and decent expression would well communicate the alleged atrocities faced by her.”
In brief, the Bench then states in para 32 that, “In this connection, there is yet another judgment of Hon’ble the Apex Court in the case of Social Action Forum for Manav Adhikar Vs. Union of India reported in 2018 (10) SCC 443. The Hon’ble Apex Court was aware that Section 498A IPC and its allied sections is mercilessly used by the advocates to serve the objective of their clients and that is why after exaggerating the incident manifold, tailored an imaginary and abhorring story. This laudable section was brought into the Statute Book in the year 1983.”Most commendably, the Bench then precisely states in para 33 that, “However, it has been contended that Section 498A IPC since its introduction, has increasingly deal vilified and associated with the perception and its misuse by the women who frequently used it as a weapon against her in-laws. As the petitioners, though there is general complaint that Section 498A IPC is subject to gross misuse, yet there is no concrete data to indicate how frequently the provision has been misused. Further, the Court by whittling down the stingency of Section 498A IPC is proceeding on an erroneous premises that there is misuse of said provision whereas infact misuse by itself cannot be ground to repeal the panel provision or take away its teeth. It is question of a common observation that every matrimonial case is being exaggerated manifold with all the pungent and sarcastic allegations dowry related atrocities involving the husband and all family members. This rampant practice now a days has adversely affecting our social fibre especially in the northern India. In the metro cities, the doctrine of ‘live-in relationship’ has silently sneaked into our socio-cultural ethos by replacing our traditional marriages by its new modern abrasion in the name of ‘live-in relationship’. This is a ground reality and one has to accept it willy-nilly which is nowhere similar to our traditional marriage. It is defined as domestic co-habitation between adult couple who are not married. It is a stress free companionship without any legal obligation, it has many complication, responsibilities and legal liabilities. It is a voluntary agreement in it that unmarried male or female decides to live together in one roof in a sexual and romantic relationship which seems to be marriage in alternative or substitute to the traditional marriage in which unmarried couple lives together without marrying with each other free from its legal implications, commitment and responsibilities. In fact, this is an off shoot of traditional Indian marriage just to save the couple from the hazards and legal complications and bickering between them, The two young couples agree to have sexual and romantic relationship. The traditional fragrance of our age-old institution of marriage would completely evaporate over period of time if such gross and unmindful misuse of section 498-A IPC would keep on pasted rampantly.”
Frankly speaking, the Bench then hastens to add in para 34 that, “Thus assessing the totality of the circumstances, object and the allegation of misuse of this piece of legislation in a shape of Section 498A IPC, the Court is proposing the safeguards after taking the guidance from the judgment of Hon’ble the Apex Court in the case of Social Action Forum for Manav Adhikar Vs. Union of India (Supra) keeping in view the growing tendency in the masses to nail the husband and all family members by a general and sweeping allegations.”
Most significantly, the Bench in continuation of what is stated in para 34 then lays down in para 35 that, “Thus, It is directed that :-(i) No arrest or police action to nab the named accused persons shall be made after lodging of the FIR or complaints without concluding the “Cooling-Period” which is two months from the lodging of the FIR or the complaint. During this “Cooling-Period”, the matter would be immediately referred to Family Welfare Committee (hereinafter referred to as FWC) in the each district.
(ii) Only those cases which would be transmitted to FWC in which Section 498-A IPC along with, no injury 307 and other sections of the IPC in which the imprisonment is less than 10 years.
(iii) After lodging of the complaint or the FIR, no action should take place without concluding the “Cooling-Period” of two months. During this “Cooling-Period”, the matter may be referred to Family Welfare Committee in each districts.
(iv) Every district shall have at least one or more FWC (depending upon the geographical size and population of that district constituted under the District Legal Aid Services Authority) comprising of at least THREE MEMBERS. Its constitution and function shall be reviewed periodically by the District & Sessions Judge/Principal Judge, Family Court of that District, who shall be the Chairperson or Co-chairperson of that district at Legal Service Authority.
(v) The said FWC shall comprise of the following members :-
(a) a young mediator from the Mediation Centre of the district or young advocate having the practices up to five years or senior most student of Vth year, Government Law College or the State University or N.L.Us. having good academic track record and who is public spirited young man, OR;
(b) well acclaimed and recognized social worker of that district having clean antecedent, OR;
(c) retired judicial officers residing in or nearby district, who can devote time for the object of the proceeding OR;
(d) educated wives of senior judicial or administrative officers of the district.
(vi) The member of the FWC shall never be called as a witness.
(vii) Every complaint or application under Section 498A IPC and other allied sections mentioned above, be immediately referred to Family Welfare Committee by the concerned Magistrate. After receiving the said complaint or FIR, the Committee shall summon the contesting parties along with their four senior elderly persons to have personal interaction and would try to settle down the issue/misgivings between them within a period of two months from its lodging. The contesting parties are obliged to appear before the Committee with their four elderly persons (maximum) to have a serious deliberation between them with the aid of members of the Committee.
(viii) The Committee after having proper deliberations, would prepare a vivid report and would refer to the concerned Magistrate/police authorities to whom such complaints are being lodged after expiry of two months by inserting all factual aspects and their opinion in the matter.
(ix) Continue deliberation before the Committee, the police officers shall themselves to avoid any arrest or any coercive action pursuant to the applications or complaint against the named accused persons. However, the Investigating Officer shall continue to have a peripheral investigation into the matter namely preparing a medical report, injury report, the statements of witnesses.
(x) The said report given by the Committee shall be under the consideration of I.O. or the Magistrate on its own merit and thereafter suitable action should be taken by them as per the provision of Code of Criminal Procedure after expiry of the “Cooling-Period” of two months.
(xi) Legal Services Aid Committee shall impart such basic training as may be considered necessary to the members of Family Welfare Committee from time to time(not more than one week).
(xii) Since, this is noble work to cure abrasions in the society where tempos of the contesting parties are very high that they would mellow down the heat between them and try to resolve the misgivings and misunderstanding between them. Since, this is a job for public at large, social work, they are acting on a pro bono basis or basic minimum honorarium as fixed by the District & Sessions Judge of every district.
(xiii) The investigation of such FIRs or complaint containing Section 498A IPC and other allied sections as mentioned above, shall be investigated by dynamic Investigating Officers whose integrity is certified after specialized training not less than one week to handle and investigate such matrimonial cases with utmost sincerity and transparency.
(xiv) When settlement is reached between the parties, it would be open for the District & Sessions Judge and other senior judicial officers nominated by him in the district to dispose of the proceedings including closing of the criminal case.
At the cost of repetition, it is made clear that after lodging of the F.I.R. or the complaint case without exhausting the “Cooling-Period” of two months, no arrest or any coercive action shall be taken against the husband or his family members in order to derail the proceedings before the Family Welfare Committee.”
Finally, the Bench then concludes by holding in para 38 that, “Let copy of this order be circulated by the Registrar General of this High Court for wide circulation to all the concerned, the Director General of Police, U.P.; Chief Secretary, Govt. Of U.P.; Principal Secretary (Law), Govt. Of U.P. and all the District & Sessions Judges to constitute and establish Family Welfare Committees and make them operational within a period of next three months positively. Let a circular to this effect may be issued by all the concerned authorities attaching utmost sincerity and frame rules for the said purpose within a period of next two months positively.
For the reasons narrated in paragraph no.29 out of three revisions, Criminal Revision No.1126 of 2022 and 1187 of 2022 are hereby ALLOWED. Order impugned date 03.03.2022 is hereby quashed with regard to Mukesh Bansal and Manju Bansal respectively and they shall stand discharged from the allegations of Section 498A, 504, 506, 307, 120-B IPC and Section 3/4 of D.P. Act. in S.T. No.19 of 2020 arising out of case crime no. 567 of 2018 pending in the court of Additional Sessions Judge, F.T.C.-I, Hapur and so far as Criminal Revision No.1122 of 2022 is concerned in Re : Sahib Bansal Vs. State of U.P and anr is hereby REJECTED.”
No doubt, the Single Judge Bench of Allahabad High Court comprising of Hon’ble Mr Justice Rahul Chaturvedi has very commendably issued guidelines to manifestly ensure that Section 498A is not brazenly misused by women and her parents and relatives. It has also rightly stipulated that no arrest should be made during two months cooling-off period after FIR registration. It merits no reiteration that all the courts must always definitely adhere to what has been laid down so explicitly, elegantly and eloquently by Allahabad High Court in this leading case.