Report No. 243

5.8 The other points which deserve notice in answering the issue whether the offence under Section 498-A should be made compoundable, are the following:-

5.8.1 The Law Commission of India in its 154th Report (1996) recommended inclusion of Section 498-A in the Table appended to Section 320(2) so that it can be compounded with the permission of the Court. The related extracts from the Report are as follows: "Of late, various High Courts have quashed criminal proceedings in respect of non-cognizable offences because of settlement between the parties to achieve harmony and peace in the society.

For instance, criminal proceedings in respect of offences under Section 406, IPC, relating to criminal breach of trust of dowry articles or Istridhan and offences under section 498-A, IPC relating to cruelty on woman by husband or relatives of husband were quashed in Arun Kumar Vohra v. Ritu Vohra, Nirlap Singh v. State of Punjab."

5.8.2 In continuation of what was said in the 154th Report, we may point out that the apex court, in the case of B.S. Joshi v. State of Haryana, has firmly laid down the proposition that in order to subserve the ends of justice, the inherent power under Section 482 CrPC can be exercised by the High Court to quash the criminal proceedings at the instance of husband and wife who have amicably settled the matter and are desirous of putting end to the acrimony.

The principle laid down in this case was cited with approval in Nikhil Merchant v. CBI . However, a coordinate Bench doubted the correctness of these decisions and referred the matter for consideration by a larger Bench. According to the referring Bench, the Court cannot indirectly permit compounding of non-compoundable offences.

5.8.3 The recommendation of the Law Commission in the 154th Report regarding Section 498-A was reiterated in the 177th Report (2001). The Commission noted that over the last several years, a number ofrepresentations had been received by the Law Commission from individuals and organizations to make the said offence compoundable.

5.8.4 Further, Justice Malimath Committee's Report on Reforms of Criminal Justice System strongly supported the plea to make Section 498 A a compoundable offence. The Committee observed:

"A less tolerant and impulsive woman may lodge an FIR even on a trivial act. The result is that the husband and his family may be immediately arrested and there may be a suspension or loss of job. The offence alleged being non-bailable, innocent persons languish in custody. There may be a claim for maintenance adding fuel to fire, especially if the husband cannot pay. Now the woman may change her mind and get into the mood to forget and forgive.

The husband may also realize the mistakes committed and come forward to turn over a new leaf for a loving and cordial relationship. The woman may like to seek reconciliation. But this may not be possible due to the legal obstacles. Even if she wishes to make amends by withdrawing the complaint, she cannot do so as the offence is non-compoundable. The doors for returning to family life stand closed. She is thus left at the mercy of her natal family.

This section, therefore, helps neither the wife nor the husband. The offence being non-bailable and non-compoundable makes an innocent person undergo stigmatization and hardship. Heartless provisions that make the offence non- bailable and non-compoundable operate against reconciliations. It is therefore necessary to make this offence (a) bailable and (b) compoundable to give a chance to the spouses to come together."

Though this Commission is not inclined to endorse the entirety of observations made in the above passage, some of them reinforce our conclusion to make it compoundable.

5.8.5 The views of Malimath Committee as well as the recommendations in the 154th Report of Law commission were referred to with approval by the Department-Related Parliamentary Standing Committee on Home Affairs in its 111th Report on the Criminal Law (Amendment) Bill 2003 (August 2005). The Standing Committee observed thus:

"It is desirable to provide a chance to the estranged spouses to come together and therefore it is proposed to make the offence u/s 498-A IPC, a compoundable one by inserting this Section in the Table under sub-section(2) of Section 320 of CrPC".

5.8.6 The 128th Report of the said Standing Committee (2008) on the Code of Criminal Procedure (Amendment) Bill, 2006 reiterated the recommendation made in the 111th Report.

5.8.7 The views of Supreme Court and High Courts provide yet another justification to treat the offence under Section 498-A compoundable.

The Supreme Court in a brief order passed in Ramgopal v. State of M.P. observed that the offences under Section 498-A, among others, can be made compoundable by introducing suitable amendment to law. The Bombay High Court, as long back as in 1992, made a strong suggestion to amend Section 320 of CrPC in order to include Section 498-A within that Section.

In the case of Preeti Gupta v. State of Jharkhand , the Supreme Court, speaking through Dalvir Bhandari, J. exhorted the members of the Bar to treat every complaint under Section 498-A as a basic human problem and to make a serious endeavour to help the parties in arriving at amicable resolution of that human problem. The Supreme Court then observed that the Courts have to be extremely careful and cautious in dealing with these complaints and must take pragmatic realities into consideration. Further, it was observed:

"Before parting with the case, we would like to observe that a serious relook of the entire provision is warranted by the legislation. It is also a matter of common knowledge that exaggerated versions of the incident are reflected in a large number of complaints. The tendency of over implication is also reflected in a very large number of cases". The Supreme Court then made these observations:

"It is imperative for the legislature to take into consideration the informed public opinion and the pragmatic realities in consideration and make necessary changes in the relevant provisions of law. We direct the Registry to send copy of this judgment to the Law Commission and to the Union Law Secretary, Government of India who may place it before the Hon'ble Minister for Law & Justice to take appropriate steps in the larger interest of the society".

5.9 Yet another factor that should be taken note of is the policy of law in laying stress on effecting conciliation between the warring couples. The provisions in Section 9 of the Family Courts Act, 1984 Section23 (2) of the Hindu Marriage Act, 1955 and Section 34(2) of the Special Marriage Act, 1954 impose an obligation on the court to take necessary steps to facilitate re-conciliation or amicable settlement.

5.10 It is worthy of note that in Andhra Pradesh, the State Legislature made an amendment to Section 320(2) of CrPC by inserting the following in the 2nd

Husband or relative of husband of a woman subjecting her to cruelty

498A

The woman subjected to cruelty: Provided that a minimum period of three months shall elapse from the date of request or application for compromise before a Court and the Court can accept a request for compounding an offence under Section 498A of the Indian Penal Code provided none of the parties withdraw the case in the intervening period.

The observations made by the High Court in various cases were taken into account while making this amendment. The amendment came into force on 1.8.2003. Our recommendation is substantially on the same lines.

5.11 The overwhelming views reflected in the responses received by the Law Commission and the inputs the Commission has got in the course of deliberations with the members of District and Subordinate Judiciary, the members of the Bar and the law students is yet another reason persuading us to recommend the amendment of law to make the offence under 498-A compoundable with the permission of Court.

The list of respondents from whom views have been received by the Commission is at Annexure 1-B. An analysis of such views touching on the point of compoundability is furnished at Annexure 1-A. The Consultation Paper-cum-Questionnaire on various aspects of Section 498-A published by the Commission is attached hereto as Annexure

5.12 At the Conference with judicial officers including lady officers, there was almost unanimous opinion in favour of making the offence compoundable. The lady lawyers who were present at the Conferences held in Visakhapatnam, Chennai and Aurangabad did not oppose the move. At a recent Conference held with about 35 Judicial Officers of various ranks at Delhi Judicial Academy, there was unanimity on the point of compoundability.

However, some Judges expressed reservation about allowing 3 months gestation period for passing a final order of compounding under Section 320(2) Cr PC. It was suggested that there should be some flexibility in this regard and the 3 months' period need not be strictly adhered to especially where there is a package of settlement concerning civil disputes as well. Keeping this suggestion in view, the Commission has provided that in the interests of justice, the Magistrate can pass orders within a lesser time.

5.13 The Law Commission is therefore of the considered view that the offence under Section 498-A IPC should be made compoundable with the permission of the Court. Accordingly, in Table-2 forming part of Section 320(2) of the Code of Criminal Procedure, the following shall be inserted after the entry referring to Section 494 and before the entry relating to Section 500:

Husband or relative of husband of a woman subjecting her to cruelty

498A

The woman subjected to cruelty.

Sub-section (2A) shall be added to Section 320 CrPC, as set out in paragraph 5.6, page 17 supra.