Report No. 243
11. Diagnosis of the problem and reasonable solution
11.1 That Section 498-A has been misused in many instances admits of no doubt. This has been taken judicial notice of in several cases. The Parliamentary Committee has also adverted to this aspect. The inputs received by the Law Commission and the representations made to the Home Ministry. also confirm this fact. However, there is no reliable data to reveal the extent of abuse or misuse. The data/information reveals that urban and educated women are mostly coming forward to file the complaints under this section.
The data also reveals that in most of the cases, apart from the husband, two of his relations (especially in-laws) are being prosecuted. At the same time, the Commission feels that misuse arising from exaggerated versions and over implication should not by itself be a ground to dilute the provision by making it bailable. Depriving the police of the power to arrest without warrant in order to have proper investigation would defeat the objective of the provision and may be counter-productive.
The element of deterrence will be irretrievably lost, once it is made bailable. It is to be noted that the misuse did not flow from the section itself but the roots of misuse were grounded on the insensitive police responses and irresponsible legal advice. The victim/complainant deprived of her cool and objective thinking, quite often, unwittingly signs a complaint containing such exaggerated or partially false allegations. By the time she realizes the implications thereof, it would be too late.
11.2 In the Commission's view, the misuse could be minimized by taking such measures as would ensure the strict observance of the law governing arrest as evolved in D.K. Basu's case and incorporated in the statute i.e., in Chapter-V of Cr. P.C. The police at present either overact or adopt indifferent attitude in many a case.
They are expected to act with due sensitivity and with the realization that they are dealing with an alleged offence arising out of strained matrimonial relations and that nothing should be done to disrupt the chances of reconciliation, or to cause trauma to the children. While launching of investigatio.- preliminary or otherwise, without delay is desirable, the arrest and such other drastic measures should not close the doors for reconciliation and amicable settlement.
The Law Commission has already recommended that the offence under Section 498-A should be made compoundable. This is the minimum that could be done to promote the restorative, not merely penal goal of the law. It may be noted that even under the Prevention of Domestic Violence Act, a specific provision is enacted providing for conciliation at the earliest on the intervention of Magistrate.