Source: The post Cooling period and FWC under Section 498A delay justice has been created, based on the article “Judicial experimentalism’ versus the right to justice” published in “The Hindu” on 17 September 2025. Cooling period and FWC under Section 498A delay justice.
UPSC Syllabus Topic: GS Paper 2- criminal justice system.
Context: The Supreme Court in Shivangi Bansal v. Sahib Bansal endorsed Allahabad High Court guidelines mandating a two-month “cooling period” and Family Welfare Committee (FWC) referral in Section 498A/BNS 85 matters. It raises concerns about delay and overreach.
What did the Supreme Court endorse?
- Core direction and source: The Court approved Mukesh Bansal v. State of U.P. (2022) guidelines. A two-month cooling period follows FIR or complaint registration, with mandatory FWC referral before coercive action. This is a significant procedural change.
- Intended purpose: Courts have recorded instances of misuse of Section 498A in FIRs and arrests. The measures aim to temper immediate coercive steps while the dispute is examined. They seek balance at the threshold.
- Immediate concern: The cooling period and FWC referral delay prompt access to justice. They infringe the autonomy of criminal justice agencies in investigation and decision-making. Victims face slowed relief.
Which safeguards against misuse already exist?
- Pre-FIR scrutiny: In Lalita Kumari, matrimonial disputes may undergo preliminary inquiry before FIR. Recent criminal law reforms also place cruelty by husband in preliminary enquiry. (Built-in gatekeeping exists.)
- Arrest rationalised by law: The 2008 CrPC amendment introduced the principle of necessity for arrest. In Arnesh Kumar (2014) case, the Supreme Court added a checklist and mandated notice for appearance, curbing unbridled arrest powers in Section 498A matters.
- Bail for non-compliance: In Satender Kumar Antil (2022) case, the Court directed release on bail where arrests violate Arnesh Kumar safeguards. These directions strengthened institutional checks without denying genuine complainants their legal recourse
What does NCRB data show?
- Arrest-offence ranking: Section 498A remained among the top five “highest arrest” offences till 2016, and thereafter within the top 10. This indicates an impact from statutory and institutional steps.
- Trends in cases and arrests: Registered offences rose from 1,13,403 (2015) to 1,40,019 (2022). Arrests fell from 1,87,067 to 1,45,095 in the same period. This suggesting calibrated restraint despite increasing complaints.
- Meaning of the trend: The data suggest better protection of the accused’s liberty while maintaining a victim’s access to justice. Safeguards operate without diluting the reporting of offences.
Why are the FWC and cooling period contested?
- Lack of statutory backing: There is no statutory authority to implement FWC directions or the cooling period, and their jurisdictional scope remains undefined. This creates uncertainty in application.
- Delay and prejudice: During the cooling period, no action proceeds, even after an FIR/complaint. This prolongs the victim’s hardship and defers timely response.
- Judicial experimentalism and rollback: In Rajesh Sharma (2017) case, similar FWC directions and a one-month window drew criticism as regressive and beyond competence. A three-judge Bench in Social Action Forum for Manav Adhikar (2018) overturned them, restoring prompt access and institutional primacy.
- Call to revisit: Given existing legislative and judicial safeguards, forwarding complaints to FWCs is beyond legislative intent, erodes agency autonomy, and dents the victim’s pursuit of justice. The ruling should be reconsidered.
Question for practice:
Examine how the Supreme Court’s endorsement of a two-month cooling period and Family Welfare Committee referral in Section 498A/BNS 85 cases affects victim access to justice and criminal-justice autonomy.
