Dowry has a “chilling effect” on marriage, Chief Justice of India Dipak Misra said, agreeing to decide whether a July 2017 order of the top court, which bans the immediate arrest of accused persons and allows grant of bail to them on the same day, dilutes anti-dowry harassment law.
A three-judge Bench, led by the Chief Justice, reserved for judgment a bunch of writ petitions, filed challenging the July 27 order by another Bench of Justices A.K. Goel and U.U. Lalit.
The order had said that women were filing frivolous dowry complaint against husbands and in-laws.
Among a series of directions, Justice Goel’s Bench said there should be no arrest of accused until the local Family Welfare Committees, set up by the National Legal Services Authority, composed of social workers, homemakers, retired persons, etc., vet the complaint.
The July 27 order said that criminal proceedings in dowry harassment cases can be settled and the accused can get bail.
Even the recovery of dowry articles should not be a deterrent for grant of bail.
The order was passed by invoking the extraordinary powers of the Supreme Court to administer complete justice under Article 142 of the Constitution.
Chief Justice Misra said his Bench is not sitting in appeal over the order passed by Justice Goel’s Bench. “We will only see whether the order was passed to fill gaps in the law; whether such an order was permissible under Article 142; and whether that order takes out the spirit of Section 498A,” he observed.
The Centre, represented by Additional Solicitor General P.S. Narasimha, said the order was not “practical”. He said the States had written back to the Centre, saying that setting of family welfare committees and monitoring them were not “implementable”.
Senior advocate Indira Jaising, for a petitioner, said the court should lay down directions only if there was a vacuum in law.
“Section 498A (dowry harassment) of IPC protects gender justice and rights. There should not be any kind of cruel treatment of women... But the liberty of husbands is also a factor... Whether both can be juxtaposed or reconciled?” Chief Justice wondered aloud.
Senior advocate Indu Malhotra, for a petitioner, objected to how the order bars the issuance of Red Corner Notice. Ms. Malhotra submitted that investigation of a crime is the police’s job and not that of a family welfare committee composed of non-legal persons.
Earlier, Chief Justice Misra had said that the July 27 order blunted the purpose of Section 498A as an effective law to protect human rights of married woman who live in torture.
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