By creating the Family Welfare Committee, the Supreme Court has created one more layer between the victim and the justice system, and as a result, her access to justice is compromised.

In 2005, in Sushil Kumar Sharma v. Union of India, the Supreme Court observed that complaints under section 498A of the Indian Penal Code (IPC) were being filed on the basis of personal vendetta - "[...] by misuse of the provision, a new legal terrorism can be unleashed." It also observed in the judgment that the legislature should find out ways in which the makers of frivolous complaints can be appropriately dealt with. In Chandrabhan v. State (2008), the Delhi High Court came to the conclusion that "there is no iota of doubt that most of the complaints are filed in the heat of the moment over trifling fights and ego clashes. It is also a matter of common knowledge that in their tussle and ongoing hostility, the hapless children are the worst victims".

Earlier this week, in Rajesh Sharma & Ors. v. State of UP and Anr., the Supreme Court did the unthinkable. It passed a directive to police and magistrates that there would be no automatic arrests or coercive actions arising out of complaints lodged under section 498A without ascertaining the veracity of the complaints. A bench consisting of justices AK Goel and UU Lalit stated that there was a growing pattern of cases wherein the women were abusing the legal provision to implicate their husbands and his relatives — parents, minor children, grandparents and siblings — in criminal cases on the basis of malicious or frivolous complaints. The bench stated that there was "violation of human rights of innocents". The verification of the complaints shall be carried out by a special police officer and a district-level Family Welfare Committee which will preferably comprise of three members, who can be "paralegal volunteers/social workers/retired persons/wives of working officers/other citizens who may be found suitable and willing". The court, however, assured that grave physical injury or death of the aggrieved would be exceptions to this directive.

The main issue brought up by the amicus curiae was whether there was a mandate to check the provision’s reach when it came to roping in all family members to settle a matrimonial dispute and cruelty under section 498A. In the course of the case, data from the National Crime Records Bureau (NCRB) was used to indicate that the legal provision is being consistently misused by women - “[...] the rate of charge-sheet filing for the year 2012, under Section 498A IPC was at an exponential height of 93.6% while the conviction rate was at a staggering low at 14.4% only [...] out of 4,66,079 cases that were pending in the start of 2013, only 7,258 were convicted while 38,165 were acquitted and 8,218 were withdrawn. The conviction rate of cases registered under Section 498A IPC was also a staggering low at 15.6%.."

The judgment deliberates that scope and meaning of 'cruelty' within section 498A of the IPC and states that it covers conduct that may drive a woman to commit suicide or cause grave injury (mental or physical) or danger to life or harassment with a view to coerce her to meet unlawful demand. The scope of the word ‘cruelty’ underlined by the bench has no quantitative indicators or signifiers and neither it is objective enough to validate by an external Family Welfare Committee. This is the first flaw in the judgment - it talks about an unprejudiced test to the veracity of the complaints, but leaves this responsibility on the shoulders of arbitrary subjects shaped by patriarchal worldviews.

Secondly, the bench states that if complaints are filed under this legal provision, it would not just be harassment against the innocent husband and his relatives, it would also mean that reconciliation and reunion of the couple wouldn’t be possible if such a complaint is filed. This is a disturbing observation by the apex court - the fact that a woman must internalise and normalise violence in private spaces because her matrimonial home and relationships would otherwise collapse is a dangerous concept to float into the world that claims to be rooted in finding gender equality. Additionally, by prioritising the reconciliation of a married couple over violence faced by the woman in the matrimonial relationship, the court drives home the idea that women should shy away from the reporting of domestic violence/intimate partner abuse and/or cruelty by in-laws, because she has been entrusted to upload and protect the honour of her family.

Moreover, the language of the judgment is disturbingly problematic - condemning the "violation of human rights of the innocents" (the husband and his family). The bench, in a bid to deal with frivolous cases of domestic cruelty, completely strikes at the roots of understanding women’s rights and agency. It ignores the historical underrepresentation and oppression of women in all phases of life that has given rise to gender inequality within public and private spaces and attempts to read down a protective legal provision meant for women for the preempted violation of men’s rights. Also, the intermediate body is named Family Welfare Committee, an indication that the family is above all else - more important than a woman’s rights, dignity or agency.

However, most importantly, the court dismisses the concept of formal reporting of crimes against women. The creation of an intermediate body that will vet complaints against cruelty, before the complaint reaches the formal authority, to check for frivolity or maliciousness is to indicate that the judiciary does not trust the very beneficiaries of this legal provision. Stating that the exceptions to this directive are grave physical violence or death translates to the fact that the court does not care to look at complaints regarding the emotional or sexual violence that often lead to graver consequences. Indicating that it wants to look at just one type of violence is also problematic because the court is sending the message that violence can only physically manifest on a victim’s body, therefore, deterring victims of mental torture by husband and his relatives. By creating the Family Welfare Committee, the court creates one more layer between the victim and the justice system, and as a result, her access to justice is compromised.

In 2014, another bench of the court had observed that “the fact that Section 498A is a cognisable and non-bailable offence has lent it a dubious place of pride amongst the provisions that are used as weapons rather than shield by disgruntled wives”. This was a dangerous view of the situation, and in the bid to prevent misuse of the law, in this present case, the court has ignored the aspect of preventing the violence itself. This Supreme Court direction is regressive and goes against all that we have tried to achieve for women’s rights in private spaces in India.