Judgement Re-writing of “Rajesh Sharma v. State of U.P.

SUBJECT

Family Law

SUBMITTED TO
Prof. Nandini Biswas

SUBMITTED BY
Trayi Reddy
BA. LLB (Hons.)
2nd semester - Section B
t

Roll number: 43
 Rajesh Sharma

State of U.P.

The Supreme Court's ruling in Rajesh Sharma & Ors. v. State of U.P. regarding the 'misuse' of
Section 498-A1 is out of touch with the realities of domestic violence crimes, but it is consistent
with a broader trend in the judiciary's approach to this provision.23
The case originated from an appeal that contested the subpoena given by the Additional Sessions
Judge to the relatives of the complainant's husband. However, the Court decided to address the
issue of preventing the 'misuse' of Section 498-A in general, rather than establishing guidelines
for challenging such summonses specifically.
In addition to the issue mentioned earlier, there are several flaws in the Supreme Court's verdict
in the contents of the guidelines. One of these flaws is that the Court ordered the formation of 3-
member District Family Welfare Committees, which would consist of officials' wives, retired
individuals, paralegal volunteers, social workers, and so on.
According to the Court's directive, any complaint filed under Section 498-A must be referred by
the Magistrate or police to the three member District Family Welfare Committee. The
Committee is required to personally interact with the parties involved, gather statistical
information, and provide its opinion to the referring authority within one month.
Before the report is received and reviewed by the referring authority, no arrest should typically
take place according to the guidelines. The guidelines also enable any higher-ranking judicial
officer to terminate criminal proceedings if a settlement is reached between the parties. Finally,
the guidelines do not pertain to cases involving concrete physical harm or death.
The Court justified its directives by highlighting the common occurrence of misusing the
provision “on the strength of vague and exaggerated allegations, without there being any
verifiable evidence of physical or mental harm,”4 resulting in an inability to reconcile the
conflicting parties.
The Court presented data from the Crime Records Bureau which disclosed the count of S. 498-
A5 cases that were declared 'false' because of errors in law and/or facts. Additionally, the Court
also highlighted the variation in rates of charge sheet filing and conviction, which appear to
suggest the misuse of S. 498-A on a considerable scale.
1
Rajesh Sharma & Ors. v. State of U.P., Criminal Appeal No. 1265 of 2017 (Supreme Court of India) [‘Rajesh
Sharma’]

2
See generally M.B. Neitz, Socio-economic Bias in the Judiciary, 61(1) Cleveland State Law Review 137 (2013).

3
P. Sridevan, Judiciary, An Old Boys’ Club, The Hindu, March 30, 2016, http://www.thehindu.com/todays-paper/tp-
opinion/judiciary-an-old-boys-club/article8410858.ece (Last visited on August 10, 2017).

4
Rajesh Sharma, Criminal Appeal No. 1265 of 2017, ¶ 7 (Supreme Court of India).

5
Rajesh Sharma, Criminal Appeal No. 1265 of 2017, ¶ 15 (Supreme Court of India). “…6,141 cases were declared
false on account of mistake of fact or law…rate of charge-sheet filing for the year 2012…was at an exponential rate
of 93.6%, while the conviction rate was at a staggering low at 14.4%.”

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The Court's reference to previous cases like Preeti Gupta v. State of Jharkhand6 suggests that it
may have accepted the reasoning presented in that case.
The court in Preeti Gupta v. State of Jharkhand emphasized the importance of reconciliation and
noted the common occurrence of false complaints, while also quashing proceedings due to lack
of evidence. The verdict also references the Chander Bhan v. State7 decision of the Delhi High
Court and the Arnesh Kumar v. State of Bihar8 decision of the Supreme Court, which provided
guidelines to prevent the misuse of Section 498-A.

The issues before the court with relevance of the use of Section 498-A are as follows:

i) Implicating the husband and his relatives and arresting them without just cause.
ii) Carrying on with the legal proceedings even after the parties have settled the issue
between them, despite the fact that the offense is non-compoundable, causing
unnecessary hardship to both parties.9

The first point is solely related to the illegal and inappropriate use of arrest power by police
officers, which implies a potential failure of the criminal procedure that is meant to limit
substantive criminal law. S. 377, IPC 10has also been reported to face a more serious issue of
improper and unlawful arrests due to its misuse. However, it would be incorrect to address
the problem of police abusing their power of arrest by blaming it solely on the victims of
domestic violence who may misuse S. 498-A. The issue of improper use of arrest powers is a
matter of law enforcement and criminal procedure. However, the Court's response to this
issue unfairly punishes the perpetrator instead of the victim, which could discourage criminal
proceedings against domestic violence. This approach is concerning and could have a
chilling effect11 on such cases. The Court's focus on the issue of 'misuse' of Section 498-A
6
Preeti Gupta v. State of Jharkhand, (2010) 7 SCC 667 (Supreme Court of India).

7
Chander Bhan v. State, (2008) 151 DLT 691 (High Court of Delhi).

8
Arnesh Kumar v. State of Bihar, (2014) 8 SCC 273 (Supreme Court of India).

9
Rajesh Sharma, Criminal Appeal No. 1265 of 2017, ¶ 15 (Supreme Court of India).

10
Alok Gupta, S. 377 and the Dignity of Indian Homosexuals, Socio-economic Bias in the Judiciary, 41(46) Economic
and Political Weekly 4815, 4819 (2006); D. Mondal, ‘Misuse’ of S. 377 Sees Arrest of 100 People in Delhi, The
Sunday Guardian Live, March 18, 2017, http://www.sundayguardianlive.com/news/8772-misuse-section-377-sees-
arrest-100-people-delhi (Last visited on August 10, 2017).

11
The term has been used to mean a disincentivizing of the exercise of a legal right through imposition of other
legal regulations

2
 based on simplistic analyses of conviction rates creates a legal system that is inherently
biased against the victim, resulting in the guidelines that have been established.

The overall story of inappropriate arrests has been mixed up with the issue of "false FIRs" 12
or victim harassment of the husband's family members (as opposed to police harassment
through arrests). As a result, judgments like Chander Bhan v. State have been cited in the
current case
without any clear objections or at least an implicit approval. The Supreme Court has
highlighted that there is a risky merging of the problem of wrongful arrests with the filing of
untrue FIRs or mistreatment of the husband's relatives by the accuser. This conflation is
reflected in judgments like Chander Bhan v. State13, which have been cited in the present
case with no clear objection or at least implicit approval. additionally, Chander Bhan held
that FIRs should not be registered in a scheduled manner in Section 498-A cases. The
Supreme Court itself has called out this dangerous conflation in Lalita Kumari v. State of
U.P14. The Court in Lalita Kumari v. State of U.P. ruled that the police cannot conduct a
preliminary inquiry before filing an FIR based solely on the ground of an arbitrary arrest, as
there are different safeguards in place against arrest after the FIR stage15. The problem of the
lack of correspondence between the issue and solution can be easily addressed by looking at
the existing jurisprudence on arrests and ensuring that it is followed consistently.16 After the
2008 Amendments, an arrest in cases under Section 498-A can only be made if certain
specific conditions are met such as the suspicion of possible tampering with evidence,
intimidation of witnesses, possibility of escape, among others.17

The Supreme Court has provided additional measures to ensure that the power to arrest is not
abused, by distinguishing between the power to arrest and the justification for doing so.18 To
make an arrest under a certain provision, it is not enough to only have a reasonable and
believable suspicion of the accused's involvement; there must also be a necessity for the
12
Infra note 4. The quote from the judgment clearly conflates ‘uncalled for arrests’ with the ‘uncalled for
implication’ of the relatives in the case, leading to a suggestion that procedurally flawed arrests are somehow
indicative of false complaints.

13
Chander Bhan v. State, (2008) 151 DLT 691 (Delhi High Court).

14
Lalita Kumari v. State of Uttar Pradesh, (2014) 2 SCC 1 (Supreme Court of India). While the Court did, thereafter,
allow preliminary enquiries for matrimonial disputes, it was only limited to establishing whether a cognizable
offence can be made out, and for not the veracity of the accusations.

15
S. 498-A prescribes punishment less than 7 years, thus falling under S. 41(1)(b) of the Code.

16
Section 41, Code of Criminal Procedure, 1973.

17
Joginder Kumar v. State of UP, 1994 AIR SC 1349 (Supreme Court of India).

18
Joginder Kumar v. State of UP, 1994 AIR SC 1349 (Supreme Court of India).

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 arrest. The court’s judgment intrinsically weakens the authority of the police under S. 41 of
the Code of Criminal Procedure (CrPC) by going beyond the existing safeguards provided by
the judiciary and the legislature. It does so by transferring these powers to a separate
committee for the specific offense of S. 498-A. The categorization unfairly targets a specific
group, namely those who have suffered domestic violence, and does not have a logical
connection to the alleged issue of procedural shortcomings. Hence, it is a subjective and
irrational categorization, and consequently, it breaches the provisions of the Constitution 19.

Moreover, the verdict has contravened Article 14 and its instruction of impartiality in State's
actions in a different, but implicit way via the final directive put forth by the Court. This
provision specifies that the supplementary measures, which exceed the existing regulations
for all crimes, do not apply to instances of Section 498-A cases that involve concrete physical
harm or fatality20. This creates an unreasonable distinction between various forms of abuse
that are acknowledged as equally valid. The reason for this is that the consequence of the
ruling would be to treat women who have experienced tangible physical harm unequally in
comparison to women who have endured psychological, emotional, financial maltreatment,
or even faced the prospect of physical abuse.

If the aim of the directives is genuinely to deter the filing of fraudulent cases under Section
498-A21, it is uncertain how making a distinction based on the type of injury is connected to
the intended goal. If the distinction is based on the urgency of the accusation, the Court does
not clarify why intangible physical injuries, such as starvation or any other type of
maltreatment, that may have become intangible, should be considered less severe than
tangible injuries. The examination for a clear distinction between the two categories being
established is unsuccessful, indicating that this classification is random and does not meet the
requirements of Article 14. This is especially regressive considering other verdicts by the
same Court that have acknowledged the variability of an individual's level of sensitivity and
resilience, before they are "pushed to suicide," as mandated by Explanation I in Section 498-
A. Nonetheless, it is recognized that a decision of the Supreme Court cannot be assessed in
terms of fundamental rights, according to Article 13 of the Constitution22.

19
R.K. Dalmia v. Shri Justice S.R. Tendolkar, 1958 AIR SC 538 (Supreme Court of India). In a writ petition regarding
the validity of the Commissions of Enquiry Act, 1952 under Article 14 of the Indian Constitution, the Court laid
down two conditions for any classification to pass the test of Article 14. First, it must be founded on an intelligible
differentia between the classes; second, the differentia must have a rational nexus to the object of the statute in
question.

20
Rajesh Sharma, Criminal Appeal No. 1265 of 2017, ¶ 19 (Supreme Court of India).

21
Mohd. Hashan v. State of Andhra Pradesh, (2002) 7 SCC (Supreme Court of India).

22
See Rupa Ashok Hurra v. Ashok Hurra, Writ Petition (Civil) 509 of 1997 (Supreme Court of India).

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 The directives established in the verdict and the legal precedents cited in it all demonstrate a
distinct inclination towards resolving issues between the involved "parties" through
reconciliation or utilizing civil dispute resolution methods when it comes to domestic
violence matters. S. 498-A is a non-compoundable offence23. Nevertheless, in the case of
Gian Singh v. State of Punjab24, the Supreme Court has ruled that criminal proceedings that
pertain to private issues, although non-compoundable, like marital conflicts, can be dismissed
under Section 482 of the Criminal Procedure Code based on a settlement reached between
the involved parties. Feminist legal methodology significantly criticizes this differentiation
within the law, connecting it with the argument that the law persists in being "male in the
feminist sense."25 As a result, while patriarchy initially limits women to the private/domestic
sphere, the legal system constrains the law's oversight to the public realm, which is male-
dominated, making it easier for the law to ignore concerns such as domestic violence, work-
life balance for working women, maternity benefits, and so on. Challenging this
differentiation is an essential aspect of "the woman question,"26 which is fundamental to
feminist methodologies - "viewing the personal as political" necessitates viewing the private
as public27.

Nevertheless, apart from the critique regarding the Supreme Court's public sector and private
sector distinction, there are internal inconsistencies in the directives of the current judgment
that are inconsistent with existing laws. This prime decision of the court to allow District and
Sessions judges to dismiss proceedings when a settlement has been reached is not in
accordance with the current criminal procedure and can be criticized internally. To allow the
District and Sessions judges to dismiss cases where parties have reached a settlement goes
beyond the current criminal procedure. This is because the authority to compound non-
compoundable offenses is only within the jurisdiction of High Courts' inherent powers under
Section 482. The Court has exceeded the boundaries of the Criminal Procedure Code28 by
delegating this power to lower courts.

The differentiation made by the judiciary between violent crimes in general and marital
violence has not benefited the interests of the victim29. The differentiation made by the
23
S. 320, Criminal Procedure Code, 1973.

24
Gian Singh v. State of Punjab, Special Leave Petition (Crl.) No. 8989 of 2010.

25
C.A. MacKinnon, Feminism, Marxism, Method and the State: Toward Feminist Jurisprudence, 8(4) The University
of Chicago Press Journals 635, 644 (1983).

26
K. Bartlett, Feminist Legal Methods, 103(4) Harvard Law Review 829, 837 (1990).

27
MacKinnon, supra note 24, at 656.

28
Mithabhai Pashabhai Patel & Ors. v. State of Gujarat, Criminal Appeal No. 941 of 2009, ¶21 (Supreme Court of
India).

29
this is evident from most case-laws that have been cited by the Supreme Court in Rajesh Sharma, Criminal
Appeal No. 1265 of 2017, ¶ 8 (Supreme Court of India).

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 judiciary between general offenses involving violence and marital violence has not been
beneficial for the victims. This division appears to normalize violent acts within the family
by promoting reconciliation and civil proceedings due to the 'private' nature of the offense.
This implies that the judiciary's differentiation between general acts of violence and marital
violence results in the normalization of violence within families by promoting reconciliation
and civil proceedings as a result of the "private" nature of the crime. This can be seen as an
unofficial push towards compounding, which would be deemed unfair or even prohibited for
similar violent crimes in the "public" domain.

The judiciary, with its biased and arguably male perspective, has overlooked the actual
differences between violence in the public and private sectors. Proving any violence in the
private sphere is generally challenging due to the absence of neutral witnesses besides the
victim herself, as most witnesses are either related to the victim or the perpetrator 30. The
societal pressure to reconcile with the abusive spouse in the private sphere is a distinguishing
factor from the public sphere, and so The Supreme Court has made the societal pressure to
reconcile with abusive husbands an official part of the legal system through this ruling. The
persistent societal pressure and shame, which is also perpetuated by the legal system, can
result in the victim's lack of cooperation during the prosecution process. This can result in
both acquittals and accusations of "false cases". The distinction between the violence in the
public and private sectors results in a difference in approach towards reconciliation, as the
private sphere often encourages it due to societal pressures. The law considers the marital
home as a private space and therefore, emphasizes on reconciliation instead of punishment
for any violence happening in that space. This eventually leads to achieving the same goal.
After pushing for reconciliation and achieving it in the private domain of the marital home,
the law fails to recognize the significant differences between the private and public domains
of violence. Consequently, the low rate of conviction resulting from these differences is
labeled as evidence of 'misuse'.

The interpretation of the term 'misuse' regarding domestic violence cases, which results from
the law's inconsistency to identify the inherent differences between the private and public
domains of violence, may lead to decisions made in court that are reluctant to consider the
'beyond reasonable doubt' proof required to establish a case. As a result, cases that are
considered to be 'false' may lead to acquittals. By this process, the self-sustaining nature of
this cycle is clear.

30
State of Haryana v. Ram Singh, AIR 2002 SC 620 (Supreme Court of India). The Court held that while the evidence
may not be discredited simply because the witness is interested/partisan, the Court must be rather strict in its
scrutiny of such evidence; Arvind v. State of Bihar, Civil Appeal No. 1244 of 2011 (Supreme Court of India). In that
case, the mother of the deceased-victim sought to testify that she had been told by her daughter that her in-laws
had thrown kerosene and a matchstick on her, her testimony was discredited and the accused acquitted due to the
mother’s evidence being “interested”.

6
 Upon closer examination of the National Crimes Record Bureau reports mentioned in the
Court's judgment, the claims made above cast more doubt on the generalizations drawn by
the Court. The judgment cited a charge-sheet rate of 93.6%31, indicating that there was
sufficient evidence in most cases. However, the low conviction rate could be attributed to
inadequate investigations and settlements reached outside of court.32 Upon deeper scrutiny of
the National Crime Records Bureau Data by Swayam, it was uncovered that only a small
percentage of complaints filed under S. 498-A were declared false due to errors of fact or
law. This figure was estimated to be around 10-11% of the total number of 498-A
complaints. Compared to other crimes such as cheating or abduction, the percentage of S.
498-A cases declared false on the basis of mistake of fact or law is much lower, according to
data analyzed by Swayam from the National Crime Records Bureau33.

In cases of domestic violence, the judicial system's creation of an artificial distinction

between public and private spheres in terms of compounding the cases, without recognizing
the difference in evidence availability between them, is a distortion in the judicial attitudes
towards domestic violence. The Supreme Court's repeated efforts to protect the accused's
rights have resulted in a fabricated and sweeping portrayal of the accused as victims, while
disregarding the experiences of the actual victim of violence. The Supreme Court's distorted
viewpoint has led it to erroneously link the shortcomings in the enforcement of law, arrest
procedures, and the criminal justice system's failure in acknowledging the distinctions
between public and private violence with the "misuse" of a particular provision. This
approach has resulted in a generalized victimization of the complainant-victim at the expense
of protecting the rights of the accused. The judgment has become not only an example of a
misidentification of the problem, but also a representation of the need to control judicial
overreach and prevent the judiciary from portraying itself as a model of impartiality and
fairness.

31
Rajesh Sharma, Criminal Appeal No. 1265 of 2017, ¶ 7 (Supreme Court of India).

32
243rd Report of the Law Commission of India, Section 498A, IPC, ¶ 3.3 (2012);
http://feministlawarchives.pldindia.org/wp-content/uploads/498A-Report-for-NCW-final.pdf (Last visited on
February 23, 2016); National Crime Records Bureau Report, Crime in India 2014: Compendium (2014). The other
offences reported by NCRB to have very low conviction rates were ‘procuration of minors for prostitution’ (for
which it was the lowest), and crimes against scheduled castes. This clearly reflects some failure of the legal
process.

33
http://feministlawarchives.pldindia.org/wp-content/uploads/498A-Report-for-NCW-final.pdf (Last visited on
February 23, 2016).

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