When a 498a complaint is made by a genuinely aggrieved wife, or by a wife who is making a false complaint to extract money or to torture her in-laws, there is a procedure which is followed by the police. This procedure is based on the assumption that this is a dispute between a husband and wife, and that the state should try to not enter the space which is shared by husband and wife, and let them resolve their dispute between themselves. As is well known, the wife makes her complaint at one of the many CAW cells all over India.
However, in this procedure, the party which does not want a compromise or settlement is put in the driving seat, and this party can drive the proceedings to a juddering halt and render them a complete waste of time. The wife is always given the first chance to play the spoilsport.
The first step in the CAW cell process is the counselling of the wife on the day when she visits the cell with her complaint. They tell her her rights and limitations, and the rights and limitations of the husband, and the path that will be followed during the whole process. The wife gives her complaint in writing to the department at this point of time. The complaint is referred to the legal cell of the CAW cell. The legal cell goes through the complaint and makes its recommendations. Theoretically this opinion is regarding whether to proceed or not to proceed with the complaint, but nobody knows about any example where any complaint was not proceeded upon. So you can assume that the complaint will be proceeded upon by the CAW cell. However, if no offence is made out against one or more persons mentioned in the complaint, then those persons will either not be chargesheeted by the police at the women's police station / mahila thana, or they will be acquitted by the judge.
After the legal cell makes its recommendations, the complaint is forwarded again to the DCP or JCP who is in-charge of the CAW cell. At this stage, an enquiry officer is appointed by the department, and this appointment comes directly from senior-most level in the CAW cell. The enquiry officer is usually a woman, and she is under instruction to have her sympathy for the wife (though this does not always happen). The enquiry officer is normally a senior officer not below inspector rank, with at least 20 years of experience. At the stage immediately after appointment, the enquiry officer meets the wife and her parents. She tells them again the whole process, and they tell her how they wish to proceed.
The main court decisions which act as the basis for the work of CAW cells throughout the country are Joginder Kumar vs. State of UP (Crl. WP 9 of 1994) (Supreme Court), D.K. Basu (DK Bose –MU) vs. State of West Bengal (Supreme Court), Court on its Own Motion vs. CBI (Crl. Misc. 3875/2003) (Delhi High Court), Chander Bhan and Anr. vs. State (Bail application 1627/2008) (Delhi High Court, Kailash Gambhir J.), and most recently Arnesh Kumar vs. State of Bihar. All theses decisions prompted DGPs of various states of issues guidelines. Delhi was one of the first to do so, and former police commissioner Yudhbir Singh Dadwal's standing order no. 330/2008, issued in this behalf, can be downloaded here (external resource).
An excellent resource exploring the legality / illegality of CAW Cell Delhi and/or its actions is available at this webpage (external resource).
The enquiry officer writes a summons which is sent to the wife and the husband by the immediate senior of the enquiry officer. The immediate senior of the enquiry officer is usually an ACP, who is (again usually) a woman, and she also has been told to keep her sympathies with the wife. The whole CAW cell is mandated to be biased in favour of the wife.
The summons is hand delivered by an employee of the department to the house of the husband and the wife on the same day. This is the first time when the husband learns that he is an accused in a 498a case. They are requested to come to the CAW cell, but do not think of this as a request. This is a legal document which must be obeyed. If the husband ignores this summons then he may have problems in getting anticipatory bail. There is no right or wrong stage for applying for anticipatory bail in 498a/dowry cases. It all depends upon how inexperienced and afraid you are and how much money you are willing to spend on lawyers in your matrimonial conflict.
On the day of the first meeting with the enquiry officer, the husband and wife are made to sit together and they tell their versions. They make allegations and counter-allegations. At the end of the session, the enquiry officer asks the wife what she wants now. The wife says she wants conciliation (to live together again after counselling by a counsellor). Or she may say that she wants mediation (to decide the terms and conditions of mutual consent divorce, including full and final monetary settlement). She then asks the husband what he wants and tells him that if he refuses to listen to the wife then he may encounter difficulties in getting AB. The enquiry officer makes notes in her file and makes the spouses sign their attendance. Then she takes them to her immediate superior. The immediate superior listens to the enquiry officer and believes her completely. Then she talks to the wife and last of all to the husband.
The husband and wife are told to go to the conciliation cell and they meet the clerk there and ask for an appointment. They are told to come back after a week.
When they come back on the appointed day, the appointed counsellor meets wife and husband and tells the husband to wait outside while she talks with the wife. The wife narrates her version and makes her demands, usually separate residence from parents or some other demand. She is also asked whether she wants conciliation or not. This is done inspite of the fact that it was the wife who had asked for the conciliation proceedings. Then the husband is called and he narrates his version and makes his statement about whether he wants conciliation or not. Then both the spouses are called together and they are told the result of the conciliation. Sometimes another date is given, sometimes they are advised to seek mutual consent divorce. If another date is given then they come again for as many times as the counsellor considers necessary and fruitful.
If another date is not given then the counsellor takes in writing from one or both spouses that they do not want further attempts at conciliation. Then they go to the enquiry officer, who calls them on another day after one week, or a longer time if one of the parties is from another town. The next time they come, they are asked one by one whether they want mediation. If the wife says yes then the husband has to agree, or he "may have difficulty in getting anticipatory bail" (according to the EO). Then the enquiry officer gives the list of stridhan items which are claimed by the wife to be with the husband. Then the husband comes back after a few days with the admit list, which is the list of items that he admits is with him.
After this list is submitted, they are directed to go to the mediation cell. There, the clerk gives them a date for the audio-visual presentation about the mediation process. The audio-visual presentation is held in the central CAW cell, also known as the SPUWAC of the city. SPUWAC means Special Police Unit for Women And Children. In Delhi it is at Nanakpura. On the day of the audio-visual presentation, about 50-200 couples from all over the city come to the SPUWAC, and a high court lawyer makes the presentation, which is about 3 hours long. It is just a waste of time and public money to spend 3 hours on a presentation which is not really a presentation but a long session of group counselling in disguise. If they announce it as counselling in advance, then people will pay more attention instead of walking out in the middle. The only solid information they give in this session is that there will be a maximum of five mediation sessions, and that a Memorandum of Understanding (MoU) is to be made at the end of mediation, if the mediation is successful. They are also told that this cell manages to end more than 3 out of 5 disputes without the need to use further legal options.
This is a little bit out of the ordinary, because 498a is a cognisable crime, and an FIR is mandatory upon filing of a complaint in such an offence. Some courts and legal commentators have said that the police should first file an FIR, and then conduct mediation proceedings, but it seems that wiser counsel has prevailed, because once an FIR is filed then the case cannot be quashed without a wait of at least about 18-24 months. Or possibly the ideators of quick and successful legal blackmail have prevailed.
After the audio-visual presentation, a date is given for the first mediation session. On this day, the mediator, who is a high court lawyer, and who is not a high court employee but a police consultant, conducts a mediation session with both husband and wife first. Then with the wife alone, in which she asks her how much she wants and how much she is willing to go down. Then she talks to the husband alone, and asks him about his offer and paying capacity. Finally she talks to husband and wife both, and in this dialogue they find out if they have been able to reach an agreed amount. She gives a next date at the end of the session, which is a bargaining session for full and final settlement, just like the first session. Like this five sessions maximum are held, with minimum being one session. At the end, if there is an agreement, then a MoU is prepared. Otherwise, husband and wife are told to go home.
At this stage, the enquiry officer sends a written notice to both husband and wife to appear before her. On the appointed day, they appear before her, and she listens to their narrations. Then she asks them again if they want conciliation or if the husband is willing to accept the wife's demand or the wife is willing to accept her husband's offer. If there is no agreement, then she asks the husband to bring a copy of any anticipatory bail order from a competent court that he may have obtained so far (although he is not required to do so by law), and asks the wife to bring copies of receipts of marriage expenditure, photos of the wedding, and a copy of the wedding invitation.
Then they both come after a week with the required documents and they are asked again the same questions as last time. If their answer is no, then the enquiry officer forwards the file to her immediate senior, who forwards it to the DCP or JCP in-charge, who forwards it to the police station near the wife's home (or near the main CAW cell of the city, if the complaint was filed at that cell by the wife) for conversion to an FIR.
CAW cell procedure in Hindi.
Written by Manish Udar
Published by Manish Udar
page created on 19th February 2013
last updated on 10th January 2017