Report No. 243
[refer para 8.3 of the Report]
Extracts from the 237th Report of the Law Commission of India on 'Compounding of (IPC) Offences'
5. Compoundability of Certain Offences
5.1 Now, we shall consider the question of compoundability of certain specific offences.
Section 498-A, IPC
5.2 Whether the offence specified in Section 498-A should be made compoundable, and, if yes, whether it should be compoundable without or with the permission of the Court, is the two-fold question.
5.3 Section 498-A penalizes the husband or the relatives of the husband for subjecting a woman to cruelty. The definition of cruelty as given in the Section is in two parts: (1) Willful conduct of such a nature that is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (mental or physical), (2) Harassment of the woman with a view to coercing her or her relatives to meet an unlawful demand for any property or valuable security.
Thus the dowry related harassment as well as violent conduct on the part of the husband or his relations by causing injury or danger to her life, limb or health, are comprehended within the scope of Section 498-A. Quite often, the prosecution under Section 498-A IPC is coupled with prosecution under Sections 3 and 4 of Dowry Prohibition Act, 1961 as well.
5.4 Normally, if the wife is prepared to condone the ill-treatment and harassment meted out to her either by reason of change in the attitude or repentance on the part of the husband or reparation for the injury caused to her, the law should not stand in the way of terminating the criminal proceedings. However, the argument that is mainly advanced against the compoundability is that the dowry is a social evil and the law designed to punish those who harass the wives with demand of dowry should be allowed to take its full course instead of putting its seal of approval on the private compromises.
The social consciousness and the societal interest demands that such offences should be kept outside the domain of out-of-court settlement, it is argued. There can be no doubt that in dealing with this aspect, the impact of the crime on the society and the degree of social harm that might result, should be duly considered. At the same time, undesirable consequences that follow if compounding is not allowed, ought to be kept in view because the social harm or societal interest cannot be considered in vacuum.
A holistic and rational view has to be taken. While no impediments shall be placed against the effective operation of law enacted to curb a social evil, it should not be forgotten that the society is equally interested in promoting marital harmony and the welfare of the aggrieved women. A rational and balanced approach is all the more necessary for the reason that other avenues are open to the reconciled couple to put an end to the criminal proceedings. One such course is to file a 'quash' petition under Section 482 of CrPC in the High Court.
Whether it is necessary to drive them to go through this time consuming and costly process is one pertinent question. If a wife who suffered in the hands of the husband is prepared to forget the past and agreeable to live amicably with the husband or separate honourably without rancor or revenge, the society would seldom condemn such move nor can it be said that the legal recognition of amicable settlement in such cases would encourage the forbidden evil i.e. the dowry. Section 498-A should not be allowed to become counter-productive.
In matters relating to family life and marital relationship, the advantages and beneficent results that follow from allowing the discontinuance of legal proceedings to give effect to a compromise or reconciliation would outweigh the degree of social harm that may be caused by non-prosecution. If the proceedings are allowed to go on despite the compromise arrived at by both sides, either there will be little scope for conviction or the life of the victim would become more miserable. In what way the social good is achieved thereby?
We repeat that a doctrinaire and isolated approach cannot be adopted in dealing with this issue. The sensitivity of a family dispute and the individual facts and circumstances cannot be ignored. Hence, the Commission is not inclined to countenance the view that dowry being a social evil, compounding should not be allowed under any circumstances.
Incidentally, it may be mentioned that many offences having the potentiality of social harm, not merely individual harm, are classified as compoundable offences. Further, the gravamen of the charge under Section 498-A need not necessarily be dowry- related harassment. It may be 'cruelty' falling only within clause (a) of the Explanation and the demand of dowry is not an integral part of that clause.
5.5 Another argument against compoundability is that the permission to compound would amount to legal recognition of violence against women and that the factum of reconciliation cannot be a justifiable ground to legally condone the violence. The acceptance of such an argument would imply that the priority of law should be to take the criminal proceedings to their logical end and to inflict punishment on the husband irrespective of the mutual desire to patch up the differences.
It mean.- reconciliation or no reconciliation, the husband should not be spared of the impending prosecution and the punishment if any; then only Section 498-A would achieve its objective. We do not think that the objective of Section 498-A will be better achieved by allowing the prosecution to take its own course without regard to the rapprochement that has taken place between the couple in conflict.
As observed earlier, a balanced and holistic approach is called for in handling a sensitive issue affecting the family and social relations. Reconciliation without compounding will not be practically possible and the law should not ignore the important event of reconciliation. The emphasis should not be merely on the punitive aspect of the law.
In matters of this nature, the law should not come in the way of genuine reconciliation or revival of harmonious relations between the husband and estranged wife. Wisdom behind all prosecutions and punishments is to explore a judicious mix of deterrence, deprivation of liberty and repentance and reformation. Any emphasis on one aspect alone, as has been found in the working of harsh and cruel punishment regimes, may become a pigeonhole model.
5.6 The other argument which is put forward against compounding is that hapless women especially those who are not much educated and who do not have independent means of livelihood, may be pressurized and coerced to withdraw the proceeding and the victim woman will be left with no option but to purchase peace though her grievance remains unsolved. However, this argument may not be very substantial. The same argument can be put forward in respect of compoundable offences wherever the victims are women.
The safeguard of Court's permission would, by and large, be a sufficient check against the possible tactics that may be adopted by the husband and his relations/friends. The function of the Court in this matter is not a mere formality. The Judicial Magistrate or Family Court Judge is expected to be extra-cautious and play an active role. In this regard, the judge can take the assistance of a woman lawyer or a professional counselor or a representative of Legal Services Authority and the woman concerned can be examined in his/her chambers in the presence of one of them.
Alternatively, the assistance of a lady colleague can also be sought for examining a woman victim in the chambers. Normally the trial Magistrates/Judges are sensitized in gender-related issues in the course of training at the Judicial Academies. In cities like Delhi, Bangalore, Chennai etc. competent and trained mediators are involved in the process of bringing about an amicable settlement in marital disputes. Though the Court is expected to act with due care and caution in dealing with the application for compounding the offence under Section 498-A, we are of the view that it is desirable to introduce an additional safeguard as follows:
After the application for compounding an offence under Section 498-A ofIndian Penal Code is filed and on interviewing the aggrieved woman, preferably in the Chamber in the presence of a lady judicial officer or a representative of District Legal Services Authority or a counselor or a close relation, if the Magistrate is satisfied that there was prima facie avoluntary and genuine settlement between the parties, the Magistrate shall make a record to that effect and the hearing of application shall be adjourned by three months or such other earlier date which the Magistrate may fix in the interests of Justice.
On the adjourned date, the Magistrate shall again interview the victim woman in the like manner and then pass the final order permitting or refusing to compound the offenceafter giving opportunity of hearing to the accused. In the interregnum, it shall be open to the aggrieved woman to file an application revoking her earlier offer to compound the offence on sufficient grounds.
5.7 Accordingly, it is proposed to add sub-section (2A) to Section 320 CrPC. The proposed provision will ensure that the offer to compound the offence is voluntary and free from pressures and the wife has not been subjected to ill- treatment subsequent to the offer of compounding. Incidentally, it underscores the need for the Court playing an active role while dealing with the application for compounding the offence under Section 498-A.