Payment of Ransom to Pirates, Whether Opposed to Public Policy?

(By V.B. Hari Narayan*, Advocate, High Court of Kerala)

When a vessel is captured by pirates, can it be considered as irretrievably lost in the context of Marine Insurance Act, 1908 and whether payment of ransom to pirates is against English law are the two interesting questions considered by the UK Court of Appeal (Civil Division) in the recent decision in Masefield AG  v. Amlin Corporate Member Ltd. (2011) EWCA Civ.24. 

Facts

Pirates seized the vessel Bunga Melati Dua on 19 August 2008 in the Gulf of Aden while she was en-route from Malaysia to Rotterdam. The vessel was then forced to anchor off the coast of Eyl in Somalia territorial waters. During the course of the hijacking, one of the crew member was killed by the pirates. The ship owners (MISC), entered into negotiations with the pirates soon after seizure following a ransom demand in excess of US$2 million for the safe release of the crew, vessel, and her cargo.

While negotiations were in progress, on 18 September 2008, the appellant (Masefield, who owned two parcels of bio-diesel loaded onboard Bunga Melati Dua) served a notice of abandonment on the respondent (Amlin Corp. - the insurer of the parcels of biodiesel). The respondent declined the notice of abandonment but the parties agreed that proceedings should be deemed to have commenced on the date of issue. The Vessel was later released on payment of US$2 million as ransom.  The claimant apparently was not involved in the negotiation process or payment of ransom.  Following the eventual release of the vessel on 2 October 2008, after a brief stopover in the port of Djibouti, for a crew change and damage assessment, Bunga Melati Dua arrived in Rotterdam on 26 October 2008. The cargo was intact in original load port condition and had not deteriorated due to the delay, but unfortunately it had missed its prime market in the meantime. The market for bio-fuel is seasonal; hence the claimant had to store the cargo until the following year. Eventually it was sold for a price significantly less than its insured value. The assured gave credit for the recovery made on re-sale, less expenses, and claimed the balance. 

The  Issue

The appellant claimed for an actual total loss, contending that they were ‘irretrievably deprived’ of their cargo when the Bunga Melati Dua was seized by pirates. The appellant further contended that despite the cargo being subsequently retrieved upon the payment of ransom; such payment was undesirable from the point of view of public policy and universal principles of morality. In addition the appellant also argued that it is not the duty of the assured to preserve his property from loss by succumbing to a ransom demand. Therefore, the parcel of cargo ought to have been treated as ‘irretrievably lost’ and the only means of recovering it was to do something which an insured could not reasonably be expected or required to do. On the other hand the respondent contended that the cargo cannot be said to have ‘irretrievably lost’, going by the statutory test prescribed for an actual total loss (ATL) under S.57(1) of the Marine Insurance Act, 1906 as there was a good chance of negotiations for payment of ransom being fruitful.

The  decision

The Court of first instance, agreeing with the insurer’s submission dismissed the claim. In appeal by the claimant the Court of Appeal held unanimously that the appeal must be dismissed. Lord Justice Rix , giving the judgment for the Court, disagreed with the appellant’s submission and found that, when there is a strong likely-hood for the vessel being released after the payment of  a nominal  ransom (nominal in relation to the value of the vessel and her cargo) to the pirates, which will secure the safe recovery of the vessel and her cargo, there is no deprivation of the property. The Judge was persuaded to take such a view based on previous successful release of vessels under seizure by Somali pirates and the statement given by the expert witness. Thus according to Lord Justice Rix, the assured was at no point of time irretrievably deprived of its cargo so as to constitute an actual total loss (ATL) but it was more of a typical wait and see situation.

The appellants’ reliance on Dean v. Hornby ((1854) 3 El & Bl 180) was found by the Court to be of any assistance as there is no legal rule that seizure by pirates will automatically amount to an ATL. However, Rix LJ observed that a vessel seized by pirates may amount to an ATL, when the seized vessel is being utilised for the pirates’ own use and there is no prospect of finding or recovering the vessel or her cargo.  

On the grounds that payment of ransom is against public policy and that the property being held to ransom “must be considered to have been irretrievably lost, physically and/or legally, where the only means of recovering it was to do something which an insured could not reasonably be expected or required to do”: Rix LJ held that it is the role of the Parliament and not “the idiosyncratic inferences of a few judicial minds” to determine what is best for the public. Placing reliance on the decision in Egerton v. Brownlow ((1853) 4 HLC 1), it was concluded that payment of ransom by ship owners to secure the safe return of their property is not against the UK or International law.

 The Court of Appeal went on to consider whether the taking of the vessel and cargo, even with an intention of returning them on payment of a ransom, constitutes theft under English law. This point was dealt with quickly and the Court concluded that on facts since there was no intention to permanently deprive the owner of the property, it cannot be treated as theft.

Masefield’s further argument that an insured was not under a duty to sue and labour (Section 78(4) of the Marine Insurance Act, 1908) by paying a ransom, as something not expected of it, was also rejected. As Rix LJ put it, “the fact that there may be no duty to pay a ransom” does not mean there is any obligation not to make such payment. The remainder of the judgment considered the question of public policy in relation to ransom payment. The Court of Appeal held that “there is no legislation against the payment of ransoms, which is therefore not illegal.” The learned Judge went on to identify that “there is no universally recognised principle of morality, no clearly identified public policy, no substantially incontestable public interest, which could lead the courts, as matters stand at present, to state that the payment of ransom should be regarded as a matter which stands beyond the pale, without any legitimate recognition.”

Conclusion

The judgment of the Court of Appeal will be welcomed by those involved in the shipping industry, marine insurance and legal field. Whilst protagonists in favour of making ransoms illegal will continue to attract the moral dilemma of paying ransoms to Somali pirates for the safe release of vessels, crews and her cargoes, the reality is that as long as there remains no practical alternative for ship owners and their insurers, the practice will continue. Above all, ship owners undoubtedly have a moral obligation to secure the safety of life of their crew members under any circumstances and paying ransom is the only way out as they virtually  have no other options to safe guard their crew. In addition it is the duty of the state to protect the life and property of every citizen. Contrary to the policy of most countries where ransom payment is not considered illegal, countries like South Korea and United States of America have maintained a “No negotiation with pirates” attitude making ransom payment illegal. 

Cargo insurers will be reassured that the Court of Appeal dismissed the claim for an actual total loss at the time of capture; a reversal of the first instance judgment could have resulted in cargo underwriters being faced with a significant number of total loss claims from assureds and becoming owners of valuable cargoes currently being held by the Somali pirates. 

The fact that payment of a ransom has been held to be recoverable as a sue and labour expense in Royal Boskalsis Westminster NV v. Mountain ([1999] QB 674) was thought by Mr Justice Steel in the trial court to be a strong indication that the Claimant’s position was misconceived, was approved by the Court of Appeal.

The Court went on to state that, pirates are not classified as terrorists and reiterated that the payment of ransom is a sue and labour expense under a Marine Insurance policy. It is arguably implicit in the judgment of the Court of Appeal in this case that ship owners and cargo owners must exercise whatever options they may have under  Section 78(4) of the Marine Insurance Act, 1906, to meet the demands of  pirates, in order not to break the chain of causation between peril and loss.

* LL.M (Southampton)

Beware Phishing

(By Rajesh V. Nair, Advocate, Thalassery)

Phishing is relatively unknown to India. But now a day it is coming out as crime in the advanced internet age. The phishing now defines as the fraudulent practice of sending emails purporting to be from reputable companies in order to induce individuals to reveal personal information, such as passwords and credit card numbers, online. The intention behind is to entice a person to get sensitive information such as passwords, usernames, login IDs, ATM PINs and credit card details, by camouflaged as a trustworthy person or business in an apparently official electronic communication such as an email or an instant message. The phishing attacks will then direct the recipient to a web page (mirror webpage) so exactly designed to look as a impersonated organization’s (often bank & financial institution) own website and then they cleverly harvest the user’s personal information, often leaving the victim unaware of the attack.

In India, the most common form of phishing is by email pretending to be from a bank, where the sinister asks to confirm your personal information/login detail for some made up reason like bank is going to upgrade its server. The customers who are unaware of the consequences fell pray to emails and send details to identity thieves. Phishing is a major concern in the contemporary e-commerce environment in India and will continue to be so because of the lack of awareness among the Internet users, who are new to the internet realm. Therefore, the awareness and customer education is the key here to fight the menace of the “Phishing” apart from mitigating or preventative measures. The law enforcement agencies, the legislature, and the industry should come together and coordinate in their fight against the menace of the Phishing.

In India, the Information Technology Act 2000 and its subsequent amendment cover    Phishing scenario. The 2008 amendment introduced section 66-C and section 66-D to deal specifically with identity theft and cheating by personation.Section 66-A deals regarding deception of origin of message also be attracted in a phishing action. Section 43-A which places body corporate, not be negligent in securing personal data. In Indian Penal Code, phishing can attract under the heads of cheating, mischief, forgery and abetment.

Now it is indeed common that most of people are having computer with internet facility in their houses. But these people don’t have sufficient awareness to handle the internet. These persons are quite vulnerable to phishing. In India we don’t have any agency to take proactive and consumer friendly monitoring as US and European have. In order to get in to trap of phishing one must not respond to any email asking the details of your account and personal information. Some emails are always desperate in their language and so eager to retrieve information from you. Kindly look the link provided because in the phishing email is a fake URL and by using your sixth sense, you would see that email address itself is bogus.

Check your credit card and bank account statements regularly and look for unauthorized transactions, even small ones. Report discrepancies immediately. Ensure that your system has the current security software applications like; anti-spam, anti-phishing, anti-virus and anti-spyware etc.

India is a developing country and should indeed ensure the security and effectively prevent phishing and further ensures safe keeping of the digital infrastructure and on line transactions and data integrity. Be careful of emails asking for personal information and other details.

Some Useful Information 

(Collected and Compiled by S. Subramaniam, Advocate, High Court of Kerala)

1. Baptism :

Is Baptism  a condition precedent to be a person professing Christian religion and whether there  can  be  unbaptised  Christian  for  the  purpose  of  Indian  Christian  Marriage  Act, 1972 ?

Section 3 of Indian Christian Marriage Act, 1972 gives the definition of “Christian” as meaning a person professing Christian religion. “Indian Christian” (Substituted for words “Native Christian” by Adaptation of Laws Order 1950) includes the Christian descendants of natives of India converted to Christianity, as well as such converts. “Baptism” (as stated in Halsbury 2nd edition Vol II Page 806 para 1469 and note(b)) is a sacrament by which a person is admitted into the Church of Christ. It is not only a sign and distinguishing mark of the Christian profession but also a sign of regeneration or new birth. Dictionary meaning of Baptism is "immersion in or sprinkling with water a sacrament”.

It would appear that there are no judicial decisions to show that a person cannot profess Christianity unless and until he is baptized.

It is true that under Canon Law, Baptism is necessary for a Christian.

The above question has been answered in AIR 1953 Orissa10 (Page 15) (K.J.B. David v. Nilmoni Devi)

The Kerala High Court on an exhaustive discussion of case law, speaking through Hon'ble Justice Sankaran Nair, has also said that baptism is not necessary to be a Christian (1992 (1) KLT 651- Leelamma v. Dilip Kumar). His Lordship has referred to (AIR 1918 All. 162 Mahram v. Emperor) (AIR 1924 Mad. 18(F.B.) - Pakiam Solomon v. Chelliah Pillay) and (AIR 1953 Orissa 10 - K.J.B. David v. Nilamoni  Devi).

The decision reported in 1992 (1) KLT 651, on a different point, has been found to have not laid down the correct exposition of law as reported in the decision reported in (1994 (2) KLT 387 (F.B.)  at para.25  George Sebastian v. Molly Joseph).

The writer has not come across any other later decision on the question of Baptism which is not necessary for being a Christian.  

2. Palimony:- Palimony is grant of maintenance to a woman who has lived for a substantial period of time with a man without marrying her. (2010 (4) KLT 384 (SC) = (2010) 10 SCC 469 -Veluswamy v. Patchiammal). This decision refers to cases from California, New Jersy and (2010) 5 SCC 600 (para. 31) - Kushboo v. Kannammal). 

3. Legal Malice:- Something done without lawful excuse, and in disregard to the rights of others.(2010 (3) KLT  986 (SC) = AIR 2010 SC 3745 (Para 25 and 26) Kalabharati Advertising v. Hemant Vimalnath Narichania). Case law has been discussed in paragraph 25. Passing an order for an unauthorized purpose constitutes malice in law (AIR 2006 SC 182 = (2005) 6 SCC 776 - Punjab State Electricity Board v. Zora Singh). Under Land Acquisition Act, if a notification is issued under S.17 (urgency clause) with a motive extraneous to the statutory object of requiring the land for public purpose is mala fide and illegal. (AIR 1980 SC 319 - State of Punjab v. Gurdial Singh). This is also legal mala fides. Examples are aplenty.

Islamic Banking and Secularism -- Whether the Kerala

High Court Decision  Settles the Issue?

*(By Advocate Nikhil Balan, Guest Lecturer In Law, CUSAT & NUALS, Kochi)

Islamic  Financing  and  the  Writ  Petition

The concept of Islamic financing is yet to gain its momentum in India provided that the Reserve Bank of India presents an appropriate mechanism for the functioning of the system conducive to Indian financial structure. Having said this, the Hon’ble High Court of Kerala had signaled green to an Islamic financial institution in Kerala by dismissing a Writ Petition (public interest (2011 (1) KLT 807, WP (C) 35180 of 2009 (S), Order dated 3.2.2011 of Hon’ble High Court of Kerala, Dr. Subramanya Swamy & Anr. v. State of Kerala & Ors.)) filed by Former Minister for Union of India Dr.Subramanya Swamy challenging the Government of Kerala’s proposal to partner with an Islamic financial institution to invest money for the State industrial projects. The judgment that was delivered by a division bench of the High Court with Hon’ble Chief Justice Jasti Chelameshwar rendering the judgment for himself and for Hon’ble Justice P.R. Ramachandra Menon on 3.2.2011 has significance to not just the concept of Islamic banking, but more importantly to the issue of secularism and its development vis-a-vis Indian constitutional legal system.

The question that was posed before the Hon’ble High Court was not exactly on the feasibility of Islamic banking in Indian soil, but more so over a point on secularism, as to whether a State instrumentality that partners with an institution which follows one religion specific model in its functioning is against its constitutional obligations of it to be a secular State. The question as to permissible level of Islamic banking in India has been reverted back to R.B.I., for it is in the R.B.I.s jurisdiction, as to allow or not allow the practice of Islamic banking in India. The Hon’ble High Court has rightly decided not to interfere with that question of law. Welcoming that point, it is however, critical to examine as to the permissibility level that the Kerala High Court has drawn with respect to the state partnering with such an institution which follows Islamic law in its mode of business.

Understanding  Secularism -- What  India  and  the  West  has  to  Say

Secularism, indeed, is a very exciting phenomenon the ends of which is hard to meet, tough to realize and difficult to understand. India is mulling over this concept since independence more so because India has its own contribution to the institution of religion, but rarely has contributed to the issue of secularism which is more an input from the West. Indian secularism is indeed unique. It’s a blend of the west, with a savor of Indian civilization and its history. So it’s not purely Indian, and at the same time, not completely Western. In this context, the question that embarks today is how far India is secular? Is it the same secularism as is found in America, from where we have adopted the concept? Can it be said that Indian system do not support the concept of wall of separation as it exists in United States of America even after the Parliament has included the term secular in the Preamble of the Constitution? 

Secularism does not mean State is against religion. Being against would mean more of Marxian ideology i.e. “active hostility to religion” as Eugene Smith points out. Secularism can be easily defined as a concept which embodies three main relationships of three prime bodies; the state, the religion and the individual. It’s an intra relation between the state and the religion; also a relation between the religion and individual and finally the relation of State with the individual. Accordingly, when the State is to deal with the individual, it must not take cognizance of that individual being a Hindu, Muslim or a Christian. This means a citizen ought not to have a religion when looked at from the State’s point of view. But unfortunately, with religion being the dominant player in our nation, this principle had not received any of its charm in the Indian context, as has been in the West. When the State in reality accepts the religion and creates room for castes, minorities and reservation, which is its interference with the relation between individual and religion, the concept of secularism gradually evades. This eventually leads to the conclusion that the mighty arms of religion in India have over-shadowed the concept of secularism. Hence, this growth of India as a secular State had to be looked with much more caution because India is a State where religion is one powerful tool which has contributed highly to its development as a nation.

In contrast, United States is in the middle of adopting the wall of separation doctrine. The concept of wall of separation means that the Congress shall make no laws respecting an establishment of religion or prohibiting the free exercise thereof. In Mc Collum v. Board of Education the concept of wall of separation has been explained as a requirement to abstain from fusing functions of government and of religious sects, not merely to treat them all equally. India is not adopting this and prefers to adopt a practice wherein all religions are true and equal. Supreme Court has explained this attitude as benevolent neutrality (  S.R.Bommai v. Union of India (1994) 3 SCC 1.). While Indian approach has been positively to treat them equally, USA has been taking a negative approach by abstaining itself from any such interference, through the wall of separation doctrine. The U.S.A. ideology is mainly concerned of a separation but the Indian ideology is concerned more with the carrying together of the religions, since here we have a plenty of religions, and that religion is so much a part of the individual and, therefore, building of the wall of separation would hardly make any sense. Moreover, in order to shun the major threats of communalism, the State tends to show loyalty to all the religion, which as a result undermines the concept of secularism, but do not make the State purely religious at the same time. This shows a positive approach by the State as compare to the negative attitude in U.S.A. It can, thus, be arrived that State in fact supports religion in India, and not the concept of citizenship which finds place in the Constitution as India failed in bringing policies where it could subordinate religion and caste to citizenship.

Between  the  Lines  of  the  Judgment

The issue of Islamic banking and the State partnership has far reaching complications than as has been highlighted or rather ignored by the Court in this case. The decision rendered by the Hon’ble High Court of Kerala, however, cannot be said to be a foolproof welcome note to the Islamic banking for the reason that the judgment is lacking in most of the point as to the clarification that it meant to choose. The procedural hastiness in the formation of the Company, creation of this partnership with K.S.I.D.C. by non calling of tender in a record time of 3 months has been ignored by this Hon’ble Court by making mere observations. The concept of Shariah law has been very poorly discussed. No attempt has been made to understand what the particular Shariah law on banking is about, except for the remarks in paragraph 40 and 42 citing the law as “some shariah principles” and “certain principles of shariah law”. The explanation as to what “shariah compliant manner” given in paragraph 39 is only a basic understanding of what Shariah law in general is. The whole para is silent about the understanding of law that is to be followed by such companies. This is indeed the least expected from the highest court in a State and to pass judgments on such critical issues, based on poor understanding of the religious law. It must not be forgotten that it is the same general principles of Shariah law that is considered as barbaric when it comes to dealing with crime, which India has not agreed to adopt.

The Court has concluded by stating in para 44 that this activity of State is required to be treated as a secular aspect of a religious belief. Having said this, it is undeniably arguable on one hand that every religion has secularist principles in them. It is humbly submitted that most principles of religions are secular which can even be found in our Constitution in the form of equality, directive principles etc. State’s endeavour to improve health, family welfare, safety, recreation and general well-being of the citizens of the minority community can also be found on most religious books, but it cannot be said that those actions of the State would amount to patronizing any particular religion. So the thrust must not be in the State’s attempt in distinguishing between a religious activity and a secular activity. As stated earlier, the State’s attempt must be in balancing the three relations between the State, religion and individual. It can be culled out or derived that the test for secularism has to be in negative, as to see whether the State’s interference has in anyway an influenze over the people’s relation over the religion. If the State interference has a bearing on the individual’s relation with the religion, then it means that the state is promoting the religion. The secularism as understood in India and the partnership of State of Kerala with a religious institution which follows a religious custom in the partnered business is largely subject to the religious practice and religious sentiments prevalent in India. The effort of the Court must not be confined to distinguishing secular principles from religious activities, but has to be looked at from the point of India’s historical background and the role that religion in a nation like India, has contributed in its every day development as a secular nation.

Concluding  Remarks

It is undeniable that as a free society India is still Hindu favoured society, which is very clear from the Bhoomi pooja that was held at the inauguration of the new Gujarat High Court building, and which was validated by the High Court of Gujarat (Rajesh Himmatlal Solanki v. Union of India & Ors.  (2011) 1 GLR 782, W.P. (PIL) No. 2 of 2011, decided on 10.2.2011.) itself. Examples are even many. With India’s neighbours Pakistan, Burma etc. thriving much on religion, and being religious States, it must be seen with much anxiety, keenness and anticipation as to how India can sustain itself as not being Hinduistic and adopting the secular concept, which has more been a result of several compromises that had taken prior to independence and emergence of Pakistan as an Islamic State. This judgment can be worried as just another attempt to veil the historical developments in the due course of India’s progress to be a secular State, without touching the basic structure as laid in the Constitution.

India cannot be said to be completely secular in its character. Neither India nor U.S.A., which claims to be the originator of the concept is definitely absolute secularism prone. Neither could they be secular. Even in America the wall of separation does not exist to absoluteness. The tax-exemption to churches and prayers in houses before the session are examples of the not so absolute secularism. Either one way or the other a State has an interaction with the religion. Avoidance of religion would be communistic in nature, which today’s polity would not afford to bear upon. Just like its structure of Parliamentary-Presidential system, the secularism often is one quasi secular in nature, with Hinduism as its premiere ideology. By quasi secular it means having the secular character of separating the state from religion, but also at the same time being highly influenzed by the majority religious practices. The whole point of having minority religion system, the practice of reservation etc. are very clear examples of the same quasi secular nature. India definitely is not a religious State. At the same time any question on secularism must be answered with the historical background of Indian development as a secular State. 

Conjugal Aberration Needs Holistic Correction Than Punitive Measure

(By V.K. Babu Prakash, Principal Sub Judge & Secretary to the District Legal Services Authority, Thiruvananthapuram)

“She began now to comprehend that he was exactly the man who in disposition and talents, would most suit her. His understanding and temper though unlike her own, would have answered all her wishes. It was a union that must have been to the advantage of both”.

 -- Jane  Austin  in  Pride  and  Prejudice

The Law Commission of India has been recently directed by the Home Ministry of the Government of India on the basis of the observations made by the Supreme Court and various High Courts to consider whether any amendment to S.498(A) I.P.C or other measures are necessary to check the allegation of misuse of the Provision, especially by way of over implication. S.498(A) was introduced in the year 1983 with a view to protect married women from being subjected to cruelty by the husband or his relatives. The Section prescribes a punishment extending to 3 years and fine. The expression ‘cruelty’ occurring in the Section has been defined in wider terms by judicial interpretation, so as to include inflicting physical or mental harassment to the body or health of the woman and indulging in acts of harassment with a view to coerce her or her relations to meet any unlawful demand for any property or valuable security. Harassment for dowry falls within the sweep of latter limb of the Section. Driving a woman to commit suicide is also one of the ingredients of cruelty. The offence under S.498(A) I.P.C. is cognizable, non compoundable and non-bailable. The Provision was so far so good for quite sometime. Slowly, women began to exercise their rights indemnified by the Provision, thereby matrimonial aberration under the garb of matrimonial cruelty began to reach in the threshold of criminal courts. Time and again, women began to feel an upper hand due to the rigor of the Provision which made the offence non-bailable, non-compoundable thereby cases began to flood in the criminal Courts. Although, many of the allegations are not matrimonial cruelty connected with dowry demand or such like, nevertheless, all of them were disguised under the shadow of matrimonial cruelty coming under S.498(A) I.P.C. Thus, many a husband and his relatives have fallen victims into the rigorous teeth of the Section. The statistical reports published by the Central and State Governments from time to time bear out the fact that there is over implication of the relatives of the husbands in many cases which were found to be unjustifiable. While so, women from urban areas lavishly utilized the Provision, the women especially from the poor strata of the society living in rural areas seldom utilized the Provision, probably because of lack of awareness and motivation.

Justice Malimath’s Committee reported on the reforms of Criminal Justice System extensively considered the scope and amplitude of Ss.498(A) and 406 I.P.C. The Report recommended that the Provisions have become an easy tool in the hands of the Police to arrest or threaten to arrest the husband and other relatives named in the F.I.R. without even considering the intrinsic worth of the allegations by at least making a preliminary investigation. Report further found that when the members of a family are arrested and sent to jail without the immediate prospect of bail, the chances of re-conciliation or salvage of marriage will be lost for ever. The possibility of reconciliation is always there in a marital dispute whose possibility will be ruled out when arrest and incarceration, are followed. The long protracted criminal trials lead to acrimony and bitterness in the relationship among the kith and kin of the family. The pragmatic realities have to be taken into consideration while dealing with matrimonial matters with due regard to the fact that it is a sensitive family problem which shall not be allowed to be aggravated on the part of Police arresting the husbands and relatives and sending them to jail. Thus, the Malimath Committee found that although there is no sting in S.498(A) as such, but it is there in the Provisions of Cr.P.C making the offence non-compoundable and non-bailable. The Committee eventually recommended to make the offence bailable and compoundable. However, the pity is that the Central Government gave scant consideration for the recommendation. Now, due to successive representations from the quarters of various social organizations and strong observations of the Supreme Court and the High Courts, the Central Government is compelled to open its myopic eyes to look into the aspects as to consider whether any amendment or other measures are required of to check the alleged misuse or over implication of the offence under S.498(A) I.P.C. Keeping-in-mind the lofty social purpose behind the penal Provision and the object it wanted to achieve by avoiding the potentiality of its abuse or misuse, the following suggestions are recommended:-

1. 'The marriage is a discipline of humanity’, told long ago by Francis Bacon. Thus the aberration in the relationship of spouses cannot be treated in the manner of dealing with hard core criminals who indulge in criminal activities. Therefore, before registering F.I.R by Police for the offence under S.498(A), it is appreciable that some responsible counselors or mediators, attached with the Police Station or Legal Services Authority, with whom the Police Officer shall keep constant contact and interaction, to interact with the spouses and facilitate them to have counseling or mediation in the matter to find out suitable solutions. The mediators or counselors should find out the root cause of the dissension between the spouses and earnest endeavour shall be made to find out working methods like rehabilitation, re-conciliation, etc. Thus, instead of registering cases under Section 498(A) I.P.C, spouses may be allowed to choose suitable alternative redressal solutions which shall be worked out with the help of Legal Services Authority or other N.G.Os. Pre-litigation counseling or mediation is essential in matrimonial issues before registering F.I.R. and conducting investigation. 

2. Immediate arrest and custodial interrogation of the  husband and his relatives will not mete out justice. It  will only aggravate and aggrandize the hatred of spouses to each other. The wife will think to teach a lesson to the husband and the husband and his relatives in turn will think to retaliate. It will only make the matter worse. 

3. While arrest is made, the Police shall meticulously follow the directives of the Hon’ble Supreme Court rendered in the decision D.K. Basu v. State of West Bengal. However, police should not arrest the husband or his relatives unless it shows that he or they are going to abscond or evade the process of Law. Even if arrested they shall not be locked up. Decency and decorum should be shown. The arrestees must be brought to the Magistrate at the earliest. Police shall act as effective counselors and mediators to enable the spouses to soften the issue and find out suitable reconciliation methods. Police Officers especially, women Police Officers should be sufficiently trained in dealing with matrimonial issues. 

4. The offence under S.498(A) I.P.C shall be amended as bailable. Even if it is made bailable, it would not become counter productive. Re-conciliation steps are suitable than punitive actions in the matter. However, it must not be lost sight of the fact that the issue is emotional as well. If the counseling and re-conciliation process drag on endlessly, parties will feel drained of their interest and then the counseling and re-conciliation process would become tiresome and ineffective. Thus, the counseling and reconciliation process must end within a reasonable time. This must be kept-in-mind by the counselor and mediator. If the counseling and reconciliation process is not successful, then F.I.R can be registered.

5. It is worthwhile that the Investigating Officer who registers the F.I.R and investigates the offence under Section 498(A) shall not be the officer who shall involve in the process of counseling or mediation. It is better that he shall not interfere in the process. He must at the best be a benevolent facilitator to provide the service of a trained counselor or mediator who shall have the full discretion to work out the reconciliation process. The Police Officers shall better be the impartial observers or supervisors.

6. Friends or elders known to the spouses or professional counselors, ladies and men lawyers or retired persons and respected persons who know the spouses can render their invaluable service for the re-conciliation process. In every Police Station, it shall be kept a list of trained counselors, mediators and N.G.Os and lawyers who can do counseling and re-conciliation process in an effective manner. Their phone numbers and E Mail I.D shall also be kept up.

7. Since S. 498(A) I.P.C. is a penal Provision, the trial Magistrate need not be burdened with in the matter of conciliation and counseling. However, it is better that the woman spouse may be advised to file application under the Protection of Women from Domestic Violence Act, 2005 than registering a case under S.498(A). This is because the Provisions under the D.V. Act are allied and complimentary, enacted with a view to provide for more effective protection of rights of woman which are essentially of civil nature with mixture of penal Provisions, suitable working methods can be adopted by the Magistrate. An application under the D.V. Act can trigger the process of counseling and re-conciliation by the Magistrate. When the Magistrate is considering an application under the D.V. Act, the Police shall not arrest the husband under 498 (A) I.P.C Act as it will push spokes on the wheel of counseling process. The Magistrate shall, if necessary, order to keep the investigation of the offence under S.498(A) I.P.C at bay till the reconciliation process is completed.

8. Offence under S.498(A) I.P.C shall be made compoundable with leave of Court. This is because Legal Services Authority can do a lot in the matter, if offence under S.498(A) is made compoundable. Since S.498(A) is now non-compoundable, Legal Services Authority cannot consider the case, as Legal Services Authorities Act provides that only compoundable criminal cases shall be taken up by the Legal Services Authority. If the offence is made compoundable, Legal  Services Authority can provide the service of trained mediators and counselors.

9. Offence shall also be made bailable. However, if the husband had done physical cruelty on the wife by which she sustained grievous injury, then bail must be refused. But still, his relatives should be granted bail. In other cases, bail should be normally granted to both husband and his relatives. 

10.There must be better co-ordination between the Legal Services Authority and Police Station to cater the need of re-conciliation process in matrimonial issues. Now, if aggrieved women approach Legal Services Authority, it would provide proper guidelines in the matter, whereas, the present picture is that women of rural areas are not much aware of the existence to Legal Services Authority. Thus at the grass root level, the women of rural areas approach lawyers or Police Station than the Legal Services Authority. If awareness classes and programmes are conducted at the grass root level, especially among rural women, much results can be reaped. The rural people including women should be made aware of the existence of Legal Services Authority and it’s free services. Legal Services Authority can guide them at the pre-complaint and subsequent stage. 

11. Well-equipped and modern training facilities should be given to the mediators and counselors in the matter of matrimonial issues. Service of psychologists and sociologists is a sine qua non. Para-Legal Volunteers should be equipped with by Legal Services Authority who should visit villages and rural areas and conduct classes and awareness programmes. Cultural programmes should be conducted among rural women folks by the Social Welfare Department and Ministry of Women and Justice. The perception and awareness of rural women on matrimonial issues should be improved. They must also be helped to improve their awareness on social rights and obligations. Equally, men of rural areas should be motivated to have awareness on the ill-effects of alcoholism and help them to avoid violence and torture against women.

12. Communication and information facility should be improved in the rural areas to have easy access and contact with Legal Services Authority, Para-legal Volunteers and nearby Women Police Stations. Sufficient number of shelter homes should be provided to women who are thrown out from matrimonial homes. Adequate facilities and hygienic atmosphere should be provided at such shelter homes. Educated and socially conscious responsible woman Police personnel should be deployed in Police Stations to tackle the ticklish matrimonial issues. There must be a women cell constituted in every Police Station. They must be trained to deal with reconciliation and rehabilitation process in matrimonial issues.

If the Society does not wake up from its indifferent attitude to matrimonial issues, the high rate of divorce and offences under S.498(A) I.P.C, etc. would rock the foundation of family set up. Suitable amendment and check measures are eventually needed on S.498(A) I.P.C. The erring husbands cannot be dealt with by the iron hand of the present Provision which is only counter productive. A holistic approach is needed in the matter of matrimonial aberration. The society needs solid and healthy marital relationships than its break-ups. St. Augustin rightly stated that, “marriage is as old as world and as new as moments”.