The Honourable Supreme Court in Rajesh Sharma and others v State of Uttar Pradesh[1] has said that there will be no arrests under Section 498A, unless the District Family Welfare Committee report vets domestic violence by family members. Pending the Committee report,

The author has tried to point out glaring defects in the guidelines it being both per incuriam and in contravention of constitutional provisions, the said guidelines has changed the whole procedural aspect of Section 498 of Code Criminal Procedure,1973 and made it practically compoundable though it being a non-compoundable offence.

The Article will examine the guidelines given by the Supreme court leading to the institution of Family Welfare committee and would try to point out the basic defects it leads to as far as it’s synchronization is concerned with other laws.

Finally, the paper will explain why the guidelines are more detrimental than helping the cause of false cases reported against the accused and their family members and would conclude how is the decision flawed.

Per Incuriam Defined
1. Per incuriam according to Black's law dictionary is, ”an opinion handed down by an appellate court without identifying the individual Judge who wrote the opinion.”[2] It is a Latin terms which means "through lack of care". A court decision made Per incuriam is on which ignores a contradictory statute or binding authority and is therefore wrongly decided and of no force. A judgment that's found to have been decided Per incuriam does, not then have to be followed as precedent by a lower court.

Hence in simple words it is Ignorance of a statute, or of a rule having statutory effect which would have affected the decision if the court had been aware of it.

2. The rule applies even though the earlier court knew of the statutes in question it did not refer to and had not present to its mind, the precise terms of the statute. Similarly, a court may know of the existence of a statute and yet not appreciate its relevance to the matter in hand, such a mistake is again such 'incuria' as to vitiate the decision. Even a lower court can impugn a precedent on such grounds.[3]

Section 498, Indian Penal Code
Section 498A of the IPC states that-
a. Husband or relative of the husband of a woman subjecting her to cruelty.-Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine.

b. For the purpose of this section, “cruelty” means-
(a) any willful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical)[4] of the woman; or
(b) harassment of the woman where such harassment is with a view to coercing her or any Person related to her to meet any unlawful demand for any property or valuably security or is on account of failure by her or any Person related to her to meet such demand.]

Guidelines made in Rajash Sharma and others v. State Of Uttar Pradesh
In the matter of Rajesh Sharma and others v. State of Uttar Pradesh the honourable Supreme court has given the following guidelines-
1. In very district on or more Family Welfare Committees, be constituted by the District Legal Services Authorities preferably comprising of three members.

2. The constitution and working of such committees may be reviewed from time to time and at least once in a year by the District and Sessions Judge of the district who is also the Chairman of the District Legal Services Authority.

3. The Committees may be constituted out of Para legal volunteers/social workers/retired Persons/wives of working officers/other citizens who may be found suitable and willing.

General Procedure According to the Guidelines-
1. The Committee members will not be called as witnesses.

2. Very complaint Under Section 498A received by the police or the Magistrate be referred to and looked into by such committee. Such committee may have interaction with the parties personally or by means of telephone or any other mode of communication including electronic communication.

3. Report of such committee be given to the Authority by whom the complaint is referred to it latest within a on month from the date of receipt of complaint.

4. The committee may give its brief report about the factual aspects and its opinion in the matter.

5. Till report of the committee is received, no arrest should normally be effected.

6. The report may be then considered by the Investigating Officer or the Magistrate on its own merit.

7. members of the committee may be given such basic minimum training as may be considered necessary by the Legal Services Authority from timе to timе.

8. The members of the committee may be given such honorarium as may be considered viable.

9. It will be open to the District and Sessions Judge to utilize the cost fund wherever considered necessary and proper.

10. Complaints Under Section 498A and other connected offences may be investigated only by a designated Investigating Officer of the area.

11. Such designations may be made within one month from today. Such designated officer may be required to undergo training for such duration (not less than one week) as may be considered appropriate. The training may be completed within four months from the date of judgment.

Practically changing the Nature of the Section from Non-compoundable to Compoundable-
The guidelines stated that in cases where a settlement is reached, it will be open to the District and Sessions Judge or any other senior Judicial Officer nominated by him in the district to dispose of the proceedings including the closing of the criminal case if dispute primarily relates to matrimonial discord; OR

If a bail application is fled with at least one clear day's notice to the Public Prosecutor/complainant, the same may be decided as far as possible on the same day. Recovery of disputed dowry items may not by itself be a ground for denial of bail if maintenance or other rights of wife/minor children can otherwise be protected. Needless to say that in dealing with bail matters, individual roles, the prima faciе truth of the allegations, requirement of further arrest/custody and interest of justice must be carefully weighed.

Diluting the restrictions on accused
1. In respect of persons ordinarily residing out of India impounding of passports or issuance of Red Corner Notice should not be a routine;

2. It will be open to the District Judge or a designated senior judicial officer nominated by the District Judge to club all connected cases between the parties arising out of matrimonial disputes so that a holistic view is taken by the Court to whom all such cases are entrusted; and

3. Personal appearance of all family members and particularly outstation members may not be required and the trial court ought to grant exemption from personal appearance or permit appearance by video conferencing without adversely affecting progress of the trial.

The guidelines being contravention of CRPC
It must be noted the these guidelines are both in contrary to the powers of the police under the Crpc where it dilutes police's power under section 41, Crpc specially sub section 1 where-

a. Any police officer may without an order from a Magistrate and without a warrant, arrest any person-
i) Who has been concerned in any cognizable offence, or against whom a reasonable complaint has been made, or credible information has been received, or a reasonable suspicion exists, of his having been so concerned;[5]

The fact this offence is cognizable duty bound the police to register and investigate the matter and appointing a special committee to deal with such matter amounts to the judicial overreach where this honorable court is going in contrary to the statue made by the legislature.[6]

The Guidelines Being contravention to Article 14
ii) The general judicial and legislative safeguards, through devolving these powers to a separate committee, for the single offence of S. 498-A. This classification unduly affects a single class of persons, which is the victims of domestic violence, and has no reasonable nexus to the problem of procedural failures that is claimed to exist. Therefore, it is an arbitrary and unreasonable classification – and thus, in violation of the Constitution.[7]

Guidelines in contravention to existing statute
It shall also be noted that the decision is against the already existing act of Protection of domestic violence[8] where it runs as follows-
For the purposes of this Act, any act, omission or commission or conduct of the respondent shall constitute domestic violence in case it-
1. harms or injures or endangers the health, safety, life, limb or well-being, whether mental or physical, of the aggrieved person or tends to do so and includes causing physical abuse, sexual abuse, verbal and emotional abuse and economic abuse; or

2. harasses, harms, injures or endangers the aggrieved person with a view to coerce her or any other person related to her to meet any unlawful demand for any dowry or other property or valuable security; or

3. has the effect of threatening the aggrieved person or any person related to her by any conduct mentioned in clause (a) or clause (b); or (d) otherwise injures or causes harm, whether physical or mental, to the aggrieved person.

Judicial Overreach of the court in issuing the Guidelines
In LYOD v. Mcmahon[9] lord bridge emphasized on the power of the court to interpret the constitution though it cannot direct the executive to follow certain policies or direction said-
‘’ it is well established that when a statute has conferred on any body the power to make decisions affecting individuals, the court will not only require the procedure prescribe by the statute to be followed, but will readily imply so much and no more to be introduced by way of additional procedural safeguards as will ensure the attainment of fairness .The courts would supplement statutory provisions where individual rights were in issue, no such presumption applied to other administrative decisions.”

Also,
In Dastane v Dastane[10], the supreme court critically examined the matrimonial ground of cruelty ass it was stated in the olds 10(1)(b) quoted above, and observed that the inquiry in any case covered by that provision had to be whether the conduct charged as cruelty is of such a character as to cause in the mind of the the leaving party a reasonable apprehension that it will be harmful or injurious to live with the other party .

The following observation of lord by Lord Merriman in Simpson v Simpson[11] should prove to be useful:
“It has so often be said that it is obvious- yet it is worth repeating- that all cases that come before this court must be determined on their own particular facts . the circumstances vary infinetly from case to case. The fact is , I think another reason for a sense of danger in trying to formulate principles of law out of particular circumstances in particular cases, and then treating those principles of law as being, so to speak, explanations or riders to the actual statutory language.

Conclusion
1. Blind adherence to any of those decisions must be deprecated, particularly when they relate to persons whose customs, manners and mode of life may be different.
2. The meaning of cruelty is not limited to physical violence [12]and the court must take into consideration while looking into the facts[13] and the circumstances of the case.[14]
3. That the fundamental right of women to live with dignity cannot be taken away even if a law is found to be misused by a few. The law can take its own course in such cases. And therefore the procedure has to be strengthened rather than going against the already existing statues and shall upheld the principle of separation of power between the legislature, executive and the judiciary

End-Notes
[1] Criminal Appeal No. 1265 of 2017 (Supreme Court of India)
[2] Henry Campbell black, Black’s law dictionary(5th edition 1979) pg.29
[3] Mr. M. Govindarajan INVOKING The DOCTRINE OF per incuriam
[4] Ramesh Dalai Godad v. State of Gujarat, 2003 CriLJ 2445
[5] Code of criminal procedure, 1973
[6] State of Haryana v. Ram Singh, AIR 2002 SC 620
[7] R.K. Dalmia v. Shri Justice S.R. Tendulkar, 1958 AIR SC 538
[8] The Protection Of Domestic Voilence Act, 2005
[9]LYOD v. Mcmahon HL 12 MAR 1987
[10] AIR 1975 SC 1534
[11] [1951] 1All ER 955,958
[12] A jayachandra v. Aneel Kaur (2004) 10 SCLAE 153
[13] Nirmala jagesha v Manohar jagesha , AIR 1991 Bom 259
[14] Keshavrao v Nisha, AIR 1984 Bom 413 (FB)