New Delhi, Aug. 6: The Supreme Court has agreed to examine whether the controversial Section 498A of the Indian Penal Code, dealing with harassment of a wife, is valid or not following a claim that the law was repealed in 1988.
“If that is so, are we convicting and prosecuting people under an invalid law?” a bench headed by Justice H.L. Dattu asked, directing solicitor general Ranjit Kumar to respond to the claim. Kumar sought two weeks’ time.
The bench, which also included Justices P.C. Ghose and Arun Misra, listed the matter for August 14.
Section 498A, which provides for punishment of a husband and/or his relatives for subjecting a woman to cruelty or harassing her, has been the subject of controversy following claims that it was being abused by some women to get back at estranged husbands and in-laws.
The apex court, which recently ruled that no person accused of an offence punishable with imprisonment up to seven years should be arrested without proper investigation, had specifically mentioned that Section 498A was sometimes being used as a “weapon rather than a shield by disgruntled wives”.
On Monday, senior counsel Pandit Parmanand Katara, appearing for the petitioner, Ravindra alias Ravi, told the court that Section 498A could not be invoked in the country because it was repealed in 1988.
Ravi is challenging Uttar Pradesh police’s decision to invoke the section against him and his family members on the basis of a complaint by his estranged wife.
The petitioner has alleged that the provision is being misused by his wife, whom he has accused of adultery and of extorting Rs 11 lakh from him with threats of false complaints of harassment.
The couple were married on February 24, 2012, in Mathura district according to Hindu customs and rites. The wife filed the case under Section 498A on January 18, 2013, following which Ravi and his family members were arrested. They are now out on bail.
According to the petitioner, Section 498A of IPC, inserted in Chapter XXA of the IPC after the Criminal Law Amendment Act, 1983, on December 25, 1983, vide Act No. 46 of 1983, was repealed “as the whole” by the Repealing and Amending Act, No. 19 of 1988, on March 31, 1988. As such, it cannot be treated as law, Katara told the bench.
The lawyer said that since the provision had been repealed, its application by police and consequent judicial proceedings were arbitrary, unconstitutional, void in law and hence violative of Articles 14 (right to equality) and 20 (prohibition against conviction for violation of any non-existent law) and 21 (right to liberty) of the Constitution.
It is mandatory for any law or amended provision to be notified in the official gazette after the presidential notification. Any subsequent repealing act is also notified in the gazette.
Katara told The Telegraph he was in possession of the notification relating to the repealed act. “Yes, I have copies of the repealed notification. I had given three copies to the bench. It is now for the government to rebut my assertion,” he said.
The counsel, however, admitted that the repealed act is not reflected in the official gazette. But he said it was for the government to explain.
Sources close to the solicitor general said the government does not have any material to show the act was repealed. “We are examining the matter further. But, for the moment we do not have any material to say that the act was repealed. Just wait and see when the case comes up for hearing,” a top law officer said.
Hope this is true.
Repeal published in AIR 1988, Vol 75, Rajasthan Page 152 and 161.
The RePEALING AND AMENDING ACT 1988 (ACT NO. 19 OF 1988).
RECEIVED THE ASSENT OF THE PRESIDENT on 31-3-1988.
Act Published in Gaz of India; 4-4-1988, Part II, S.1, Ext., P.1 (No.20)
the first schedule (Repeals)
46. The Criminal Law (Second Amendment) Act, 1983, The whole.