The Honourable Supreme Court in Rajesh Sharma and others v State of Uttar
Pradesh 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
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.” 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.
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
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) 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
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
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
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
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
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
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;
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.
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.
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 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
Judicial Overreach of the court in issuing the Guidelines
In LYOD v. Mcmahon 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.”
In Dastane v Dastane, 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 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
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 and the
court must take into consideration while looking into the facts and the
circumstances of the case.
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
 Criminal Appeal No. 1265 of 2017 (Supreme Court of India)
 Henry Campbell black, Black’s law dictionary(5th edition 1979) pg.29
 Mr. M. Govindarajan INVOKING The DOCTRINE OF per incuriam
 Ramesh Dalai Godad v. State of Gujarat, 2003 CriLJ 2445
 Code of criminal procedure, 1973
 State of Haryana v. Ram Singh, AIR 2002 SC 620
 R.K. Dalmia v. Shri Justice S.R. Tendulkar, 1958 AIR SC 538
 The Protection Of Domestic Voilence Act, 2005
LYOD v. Mcmahon HL 12 MAR 1987
 AIR 1975 SC 1534
  1All ER 955,958
 A jayachandra v. Aneel Kaur (2004) 10 SCLAE 153
 Nirmala jagesha v Manohar jagesha , AIR 1991 Bom 259
 Keshavrao v Nisha, AIR 1984 Bom 413 (FB)