Social Action Forum for Manav Adhikar v. Union of India (2018)

The cruelty provision is the single most argued-over protection a married woman has, and the argument is always the same: that it is misused. This is the decision that answers the misuse argument without weakening the section — by holding that the cure for careless arrest is discipline over the investigating agency, not an extra-statutory committee standing between a complaining wife and the police. It is the case to cite whenever a question asks how the courts have balanced the protection of women in the matrimonial home against the liberty of the accused.

Petitions were brought under Article 32 seeking an enabling environment for married women subjected to cruelty, a uniform system of monitoring and reviewing incidents of violence against married women, and a uniform policy on registration of the First Information Report, arrest and bail.

The petitioners' case was that the provision had been persistently vilified as a weapon used by wives against their in-laws; that although there is a general complaint of gross misuse, there is no concrete data showing how frequently it is actually misused; and that misuse by itself cannot be a ground to repeal a penal provision or take away its teeth. They said the offence had practically been made bailable by qualifications and restrictions laid down in a series of decisions, that the police had become hesitant to arrest, that there was no mechanism to track cases or to study the low conviction rate, that investigation was often unprofessional, and that courts had tended to look only for signs of physical cruelty and to brand complaining women as hyper-sensitive. They also pointed out that alleged abuse of the provision by educated women cannot be a ground for denying poor and illiterate women its protection.

While the petitions were pending, this Court in Rajesh Sharma v. State of U.P. had issued a set of directions: that District Legal Services Authorities constitute Family Welfare Committees of para-legal volunteers, social workers, retired persons, wives of working officers and other citizens; that every complaint be referred to such a committee; that no arrest should normally be effected until the committee reported; that a District and Sessions Judge could dispose of proceedings where a settlement was reached; and further directions on bail, on Red Corner Notices and impounding of passports, on clubbing of connected cases and on dispensing with personal appearance.

The Amicus Curiae submitted that those directions required reconsideration: the committee is an extra-judicial body unknown to the Code; the offence is not compoundable, so no power to dispose of proceedings on settlement could be conferred on a Sessions Judge, the power to quash on settlement resting with the High Court.

The Court modified the earlier directions. It declared the direction constituting Family Welfare Committees and conferring power on them impermissible, and held that the direction as a whole was not in accord with the statutory framework. The direction permitting a District and Sessions Judge to dispose of proceedings on settlement was modified: parties who settle must approach the High Court under its inherent power, which will dispose of the matter in accordance with the law on quashing.

In place of the committee, the Court directed that investigating officers be careful and be guided by the settled principles on arrest laid down in the decisions on arrest, custodial safeguards, registration of the FIR and the necessity of arrest, and directed the Director General of Police of every State to ensure that officers in charge of investigating these cases receive rigorous training on those principles.

The directions on Red Corner Notices and impounding of passports, on clubbing of connected matrimonial cases and on exemption from personal appearance were left standing, being protective in nature and not discordant with the Code; on exemption, the appropriate application under the Code must be made depending on the stage.

1. Read the section for what it protects. The offence punishes a husband or his relative who subjects a woman to cruelty, cruelty being wilful conduct likely to drive her to suicide or to cause grave injury or danger to her life, limb or health, whether mental or physical, or harassment to coerce her or her relations into meeting an unlawful demand for property or valuable security. Parliament in its wisdom made it cognizable and non-bailable.

1. Locate the fault correctly. The Court accepted that arrest brings humiliation and curtails freedom, and noted the very large number of persons arrested in a single year under the section. But the fault lies with the investigating agency, which sometimes jumps into action without application of mind — not with the provision.

1. Prefer directions that live inside the Code. The existing safeguards on arrest are in consonance with the statutory provisions requiring an officer to record reasons for arresting and for not arresting, and the custodial guidelines fall within the framework of the Code and the power of superintendence within the investigating hierarchy. The Family Welfare Committee, by contrast, introduces a third agency which has nothing to do with the Code and is empowered to report before any arrest may be made. That does not flow from any provision of the Code.

1. Interpretation has a limit. The seminal question was whether such directions could be issued by the process of interpretation at all. Where there is no law, this Court has issued directions in furtherance of a fundamental right — the guidelines on inter-country adoption and on workplace sexual harassment are the examples the judgment itself gives. Here there were statutory provisions and judgments already in the field, so directions creating a committee and conferring power on it were erroneous. A court cannot direct the legislature to enact a particular law, and some of the directions had the potential to enter the legislative field.

1. Settlement of a non-compoundable offence follows the established route. Because the offence is not compoundable, a settlement can only be given effect through the High Court's inherent power on the established principles.

1. Bail conditions are for the court, case by case. Recovery of disputed dowry items may not by itself be a ground for rejecting bail; that consideration does not belong at that stage.

It opens the standard question on cruelty in the matrimonial home and the misuse debate. The structure to use is: the section and its two limbs of cruelty; the character of the offence as cognizable and non-bailable; the misuse complaint and the absence of data; and this Court's answer — discipline the investigator, do not dilute the offence.

It disposes of the Family Welfare Committee mechanism and the idea that a criminal complaint by a wife may be filtered through a body of private citizens before the police may act, and of the notion that a Sessions Judge may close a non-compoundable case because the parties have settled.

It does not decide any question about the ingredients of cruelty on facts, and it does not hold that misuse never happens — it holds that misuse is not a reason to blunt the provision. The section and the arrest provisions now stand in the Sanhitas, so an answer should give the current provision alongside.