The judgment of the Supreme Court in Rajesh Sharma v. Union of India, in which it had laid down safeguards to prevent the misuse of Section 498A of the Indian Penal Code, could soon be overturned by a larger Bench.

A three-judge Bench of the Supreme Court headed by CJI Dipak Misra expressed its reservations regarding the correctness of the said judgment today, not for the first time.

The Bench, also comprising Justices AM Khanwilkarand DY Chandrachud, remarked,

“How can the Court lay down guidelines when there is an IPC provision? We could say that investigating authority should be circumspect when exercising its power, but why should there be guidelines?”

Amicus Curiae V Shekhar and Indu Malhotra also concurred with the Bench. Shekhar remarked that the facts and circumstances of each case will have to be considered independently and there cannot be any general guidelines.

The matter will now be listed in the third week of January.

The Court is hearing two petitions, one filed by a Maharashtra-based NGO, Nyayadhar and another by NGO Social Action Forum.

Nyayadhar had moved the Supreme Court raising a limited issue – inclusion of woman members in the Family Welfare Committee sought to be formed as per the directions of the judgment.

The Bench had, however, on October 13, observed that it is not agreeable to the judgment rendered by the Division Bench of Justices AK Goel and UU Laliton July 27.

“We are obligated to state that we are not in agreement with the decision rendered in Rajesh Sharma (supra) because we are disposed to think that it really curtails the rights of the women who are harassed under Section 498A of the Indian Penal Code. That apart, prima facie, we perceive that the guidelines may be in the legislative sphere.”

It had then proceeded to issue notice to the Centre and also appointed Senior Advocates Indu Malhotra and V Shekhar as Amicus Curiae to assist the court.

In the judgment passed by Justices Goel and Lalit, the Supreme Court saw it fit to frame guidelines with a view to curbing spurious dowry harassment claims.

The Bench had issued a number of directions, the most significant of which is the constitution of Family Welfare Committees to vet cases of domestic violence by family members. These Committees will comprise “paralegal volunteers/social workers/retired persons/wives of working officers/other citizens who may be found suitable and willing”.

The main function of these Committees would be to review complaints filed under Section 498A and interact with the parties involved in these cases. They are also required to prepare a report of the case and submit it to the relevant authority.

Quite significantly, the apex court had also directed that no arrest will be made pending the submission of this report.

In reaction to this judgment, a group of 16 women’s rights organisations had sent a memorandum to then Chief Justice of India JS Khehar asking him to review the decision.

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