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No, You Cannot Be Automatically Arrested On The Basis Of Dowry Charges

Know your rights.

03/07/2017 12:47 PM IST | Updated 03/07/2017 12:47 PM IST
Mukesh Gupta / Reuters

A few months ago Saketh*, 35, came to me for a consultation. He had been married to Anushka, 32, for around eight years. Although it was a love marriage things were not working out. Saketh wanted a wife who would adjust with his large family of seven brothers and sisters and Anushka wanted to stay separately. Saketh was pretty well off when they married but his business had suffered losses and he had to cut back on his lifestyle which was one of the reasons for the breakdown of his relationship with Anushka. Anushka was neither ready to work nor cut down on her extravagant lifestyle, which led to their relationship becoming extremely toxic. They have a son, Aniket, 5, who is Saketh's "jaan" and he wanted to save the marriage because of their child. But Anushka was verbally and physically abusive and after two years of trying everything—right from intervention by the elders of the family to marriage counselling—Saketh finally took the decision to end his marriage. However, his wife found a copy of the petition for divorce before it was filed in court. Since she had no clue that he was filing for divorce, all hell broke loose at home and she threatened to teach her husband a lesson for going behind her back to file for divorce. Saketh justified his actions by saying that he did try his best to make his marriage work and had also suggested an amicable divorce but Anushka was not interested and would get agitated each time he suggested it. As expected Anushka did exactly what I had cautioned Saketh about. She went to the police station and filed a complaint under Section 498A (dowry harassment) of the IPC. In such cases, the entire family of the accused can be arrested—and this is indeed is what often happens. Even people who may have had nothing to do with the dispute can find themselves caught in a legal wrangle.

However, there is some relief for men who are stuck in a similar situation as Saketh.

The Supreme Court has expressed it dissatisfaction with how the power of arrest and detention is used by the police and magistrates.

The Supreme Court has delivered a judgement which has had an earth shattering effect for those who are arrested under Section 498A.The Supreme Court judgment (Arnesh Kumar vs. State of Bihar & Anr) has effectively rewritten the relationship between the police and public. The important verdict arises from an appeal filed by a husband who contested his arrest under Section 498A of the Indian Penal Code and Section 4 of the Dowry Prohibition Act.

While dealing with the case, the Court thought it fit to record the rampant abuse of 498-A of the Indian Penal Code, 1860. Justice Chandramauli Kr. Prasad, who delivered the judgement, along with Justice Pinaki Chandra Ghose noted:

"There is phenomenal increase in matrimonial disputes in recent years. The institution of marriage is greatly revered in this country. Section 498-A of the IPC was introduced with avowed object to combat the menace of harassment to a woman at the hands of her husband and his relatives. The fact that section 498 A is non-bailable and cognizable offence has lent it a dubious place of pride amongst the provisions that are used as weapons rather than shield by disgruntled wives. The simplest way is to harass and get the husband arrested under this provision. In quite a number of cases, bed ridden grand-fathers and grandmothers of the husbands, their sisters living abroad for decades are arrested."

In order to prevent unnecessary arrest and casual detention, the court has issued the following directions, reproduced here from LiveLaw.in:

  1. All the state governments will instruct the police officers not to arrest automatically when any case under section 498-A of IPC is registered. They will make sure that such arrest must satisfy the provisions laid down under section 41 of CrPC.
  2. All the police officers will be provided with a check list containing specified sub-clauses under section 41(1) (b) (ii).
  3. The police officer shall forward the check list along with the reasons and materials which necessitated such arrest, while producing the accused before the magistrate for any further detention.
  4. The magistrate while authorising detention of the accused shall examine the report furnished by the police officer and only after being satisfied will authorise further detention.
  5. If the police officer decides not to arrest any accused, then such decision should be forwarded to the magistrate in writing along with the reasons behind such decision within two weeks from the date of the institution of such case. A copy of it shall be forwarded to the magistrate, which may be extended by the superintendent of police of the district.
  6. Notice to appear in terms of Section 41-A of CrPC shall be served to the accused within two weeks of the institution of the case which may be extended by the superintendent of police of the district for the reasons to be recorded in writing.
  7. If the police officer fails to comply with the aforesaid directions, then they will be liable for departmental actions and shall also be liable for to be punished for contempt of court. Such cases should be instituted before the high court having territorial jurisdiction.
  8. If a judicial magistrate authorises detention without recording the reasons as aforesaid, then he shall be liable for departmental action by the appropriate high court.
  9. The aforesaid directions shall not only apply to cases under section 498-A of the Indian Penal Code,1860 and section 4 of the Dowry Prohibition Act,1961 but also in such cases where offence is punishable with punishment for a term which may be less than seven years or which may extend to seven years, whether with or without fine.
  10. A copy of this judgment shall be forwarded to the chief secretaries as also the director generals of police of all state governments and the union territories and the registrar general of all high courts for onward transmission and ensuring its compliance.

The Supreme Court has expressed it dissatisfaction with how the power of arrest and detention is used by the police and magistrates. Even a curative bench upheld the judgement passed that "men cannot be automatically arrested on dowry harassment complaints filed by their wives."

The law is there for a specific purpose and when it is abused it does no one any good—neither women nor men.

It is to prevent the misuse of the law that the court to take such stringent action. The law is there for a specific purpose and when it is abused it does no one any good—neither women nor men. This judgment helps prevent men and their families from being falsely accused in dowry cases. But it will also be a deterrent for treating a woman cruelly.

I'll end with a summary of some interesting statistics mentioned by the court: According to National Crime Records Bureau data, 1,97,762 persons all over India were arrested during the year 2012 for offence under Section 498-A of the IPC. The rate of charge-sheeting was as high as 93.6%, while the conviction rate was only 15% which is the lowest across all heads.

* All names changed.

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