Mere illicit relationship is not enough for 498A case
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 262 OF 2009
Ghusabhai Raisangbhai Chorasiya & Ors. ... Appellants
State of Gujarat ... Respondent
J U D G M E N T
Dipak Misra, J.
The present appeal, by special leave, is directed against the judgment of conviction and order of sentence passed by the High Court of Gujarat at Ahmedabad in Criminal Appeal No. 444/2005 whereby the Division Bench has affirmed the conviction recorded by the learned Additional Sessions Judge, Jamnagar, who had found the appellants guilty of the offences punishable under Section 498A, 306, 201 and 114 of the Indian Penal Code, 1860 ('IPC' for short) and sentenced Ghusabhai
Raisinghbhai Chorasia, appellant no.1 to suffer five years imprisonment, Rakesh Ghusabhai Chorasia, appellant no.2 to suffer rigorous imprisonment for seven years and to pay a fine of Rs.500/- with a default clause and other accused persons, namely, Bakuben W/o Ghusabhai Chorasia and Jasuben @ Gaduben Rakeshbhai, appellant nos. 3 and 4 herein to suffer rigorous imprisonment for three years and to pay fine of Rs.250/- with a default clause under Section 306 IPC. That apart,
separate sentences were imposed under Section 498A and 201 with the stipulation that all the sentences would run concurrently. Be it noted, the appellants were tried along with two other accused persons, namely, Sangitaben w/o. Vijaybhai and Vijay Ghusabhai Chorasia who were acquitted by the learned trial Judge. It is also apt to note here that the State had also preferred two criminal appeals, one for enhancement
of sentence and the other challenging the acquittal of the other two accused persons and both the appeals were dismissed along with the appeal filed by the appellants in a common judgment.
2. The prosecution case, bereft of unnecessary details, is that the marriage between the deceased Biniben and Rakesh was solemnized approximately eight years before the date of occurrence, i.e. 4.3.2004. As put forth by the prosecution, Rakesh, husband of the deceased, had illicit relationsHIP with Jasuben, a divorcee. Despite the said situation two children were born in the wedlock but the compatibility between the husband and wife and the harmony of family life could not be sustained. When the first child was three months old, the deceased was driven out by her husband and she came to her parental home and stayed there for sometime. After the intervention of the elders and relatives a settlement was arrived at and thereafter she came to stay in her in- laws house. It was the further case of the prosecution that the husband was keen in his extra-marital affair and that had led to more marital discord and bitterness. The in-laws, as alleged, used to take away the
income earned by her. A time came when she was compelled to stay on the terrace of the house where she committed suicide on 4th of March, 2004.
3. As the case of the prosecution further gets uncurtained, the dead body was cremated without informing the parents of the deceased and the factum of the death was reported by the father-in-law of the deceased on 14th of March, 2004 and eventually the mother of the deceased came to know about the death on 17th of March, 2004 and thereafter reported at the Police Station in Jamnagar. After the criminal law was set in motion, the investigating agency proceeded with the investigation and recorded the statements of 25 witnesses and eventually placed the charge- sheet under Sections 498A, 306 and Section 201 read with Section 114 of
the Indian Penal Code, before the competent court. After the charge- sheet was filed, the learned Magistrate committed the matter to the Court of Session.
4. The accused persons abjured their guilt and wanted to be tried.
5. During the trial, the prosecution in order to establish the charges levelled against the accused persons, examined 25 witnesses and exhibited certain documents.
6. The learned trial Judge placing reliance on the ocular as well as the documentary evidence came to hold that four accused persons, namely, father-in-law A-1, husband A-2, mother-in-law A-3 and the woman with whom the husband was having illicit relationship, A-4, guilty of the offences. However, the trial Judge acquitted the elder brother of the husband and his wife for lack of evidence.
7. Being dissatisfied with the aforesaid judgment of conviction and order of sentence, the accused filed Criminal Appeal No. 444 of 2005. As stated earlier, the State preferred Criminal Appeal No. 2408 of 2005 for enhancement of sentence and Criminal Appeal No. 2410 of 2005 assailing the judgment of the acquittal of two accused persons.
8. The High Court appreciating the evidence brought on record, declined to interfere in the appeals preferred by the State and resultantly all the appeals stood dismissed.
9. Be it noted, the principal witnesses on whom the prosecution relied are Dakshaben Shantilal Shah, PW-9, a social worker at Vikas Vidhyalay (Vadhvan), Miraben Devsinhbhai, PW-21, sister of the deceased, Devsinhbhai, PW-18, mother of the deceased, Kanaiyabhai Devsinhbhai, PW-19, brother of the deceased and Natubhai Hirabhai, PW- 17, Sarpanch of village Rajsitapur.
10. Accused persons in their statements recorded under Section 313 took the plea that there was a divorce between the deceased and the accused No. 2, her husband; that she was staying on the terrace of the house; that she committed suicide by consuming poison; and that the accused persons had no role in it. The defence, to substantiate its plea, examined one witness and got two documents exhibited.
11. We have heard Mr. Harish Raichura, learned counsel for the appellants and Mr. Anurag Ahluwalia, learned counsel for the State.
12. On a careful scrutiny of the findings of the learned trial Judge and that of the High Court, it is noticeable that both the Courts have found that cruelty, as alleged by the prosecution under Section 498A IPC was established as a result of which the deceased committed suicide. It is quite clear from the findings and evidence on record that there was no demand of dowry. The learned trial Judge as well as the High Court has proceeded on the base that there was cruelty as per the first limb of Section 498A IPC.
13. The singular issue that requires to be scrutinized is whether there was such cruelty by the husband and his relations that could have driven the deceased to commit suicide. The stand of the accused persons, as has been indicated hereinabove, was that the husband had already divorced the deceased and she was staying on the terrace. On a proper x-ray of the material brought on record, it is manifest that the prosecution has brought on evidence, three documents, exhibits 65 to 67, on record to show that there was divorce. The sister of the deceased, Miraben Devsinhbhai, PW-21, has categorically deposed that she had talked to the deceased on telephone before her death and the deceased had told her that there has been a divorce between her husband and herself and she was staying on the terrace of the house and will leave for the parental home after the 'Holi' festival.
14. The documents that have been produced by the prosecution, namely, Exhibits 67 to 69 have not been believed by the learned trial Judge as well as the High Court on the ground that there is some unacceptable discrepancy.
15. At this juncture, it is appropriate to mention that the Holi festival in the said year fell on 6.3.2004 and the occurrence took place on March 4, 2004. It is also noticeable that the sister of the deceased had volunteered to speak about the conversation of divorce. The document shows that there was a divorce as per the customs. There is material on record to show that she was staying on the terrace. In this factual backdrop what is to be seen is whether there has been a cruelty which compelled her to commit suicide. In this regard, we may fruitfully refer to Section 498A of the IPC, which reads as under:
"498A. Husband or relative of husband of a woman subjecting her to
cruelty.-Whoever, being the husband or the relative of the husband of
a woman, subjects such woman to cruelty shall be punished with
imprisonment for a term which may extend to three years and shall also
be liable to fine.
Explanation.-For the purpose of this section, "cruelty" means-
(a) any wilful conduct which is of such a nature as is likely to drive
the woman to commit suicide or to cause grave injury or danger to
life, limb or health (whether mental or physical) of the woman; or
(b) harassment of the woman where such harassment is with a view to
coercing her or any person related to her to meet any unlawful demand
for any property or valuable security or is on account of failure by
her or any person related to her to meet such demand."
16. This Court in Girdhar Shankar Tawade V. State of Maharashtra, examining the scope of 498A, has observed thus:
"The basic purport of the statutory provision is to avoid "cruelty"
which stands defined by attributing a specific statutory meaning
attached thereto as noticed hereinbefore. Two specific instances have
been taken note of in order to ascribe a meaning to the word "cruelty"
as is expressed by the legislatures: whereas Explanation (a) involves
three specific situations viz. (i) to drive the woman to commit
suicide or (ii) to cause grave injury or (iii) danger to life, limb or
health, both mental and physical, and thus involving a physical
torture or atrocity, in Explanation (b) there is absence of physical
injury but the legislature thought it fit to include only coercive
harassment which obviously as the legislative intent expressed is
equally heinous to match the physical injury: whereas one is patent,
the other one is latent but equally serious in terms of the provisions
of the statute since the same would also embrace the attributes of
"cruelty" in terms of Section 498-A."
17. In Gurnaib Singh V. State of Punjab, while analyzing the aforesaid provision, it has been opined that Clause (a) of the Explanation to Section 498A IPC defines cruelty to mean "any willful conduct which is of such a nature as is likely to drive the woman to commit suicide". Clause (b) of the Explanation pertains to unlawful demand and Clause (a) can take in its ambit mental cruelty.
18. From the aforesaid authorities it is quite clear that the first limb of Section 498A, which refers to cruelty, has nothing to do with demand of dowry. In the present case, in fact, there is no demand of dowry. If the evidence is appropriately appreciated, the deceased was pained and disturbed as the husband was having an illicit affair with
the appellant no.4. Whether such a situation would amount to cruelty under the first limb of Section 498A IPC is to be seen. A two-Judge Bench of this Court in Pinakin Mahipatray Rawal V. State of Gujarat, while dealing with extra marital relationship, has held thus:
"Marital relationship means the legally protected marital interest of
one spouse to another which include marital obligation to another like
companionship, living under the same roof, sexual relation and the
exclusive enjoyment of them, to have children, their upbringing,
services in the home, support, affection, love, liking and so on.
Extramarital relationship as such is not defined in the Penal Code.
Though, according to the prosecution in this case, it was that
relationship which ultimately led to mental harassment and cruelty
within the Explanation to Section 498-A and that A-1 had abetted the
wife to commit suicide."
xxxxx xxxxx xxxxx
"We are of the view that the mere fact that the husband has developed
some intimacy with another, during the subsistence of marriage and
failed to discharge his marital obligations, as such would not amount
to "cruelty", but it must be of such a nature as is likely to drive
the spouse to commit suicide to fall within the Explanation to Section
498-A IPC. Harassment, of course, need not be in the form of physical
assault and even mental harassment also would come within the purview
of Section 498-A IPC. Mental cruelty, of course, varies from person to
person, depending upon the intensity and the degree of endurance, some
may meet with courage and some others suffer in silence, to some it
may be unbearable and a weak person may think of ending one's life.
We, on facts, found that the alleged extramarital relationship was not
of such a nature as to drive the wife to commit suicide or that A-1
had ever intended or acted in such a manner which under normal
circumstances, would drive the wife to commit suicide."
The Court further proceeded to state:
"Section 306 refers to abetment of suicide. It says that if any person
commits suicide, whoever abets the commission of such suicide, shall
be punished with imprisonment for a term which may extend to 10 years
and shall also be liable to fine. The action for committing suicide is
also on account of mental disturbance caused by mental and physical
cruelty. To constitute an offence under Section 306, the prosecution
has to establish that a person has committed suicide and the suicide
was abetted by the accused. The prosecution has to establish beyond
reasonable doubt that the deceased committed suicide and the accused
abetted the commission of suicide. But for the alleged extramarital
relationship, which if proved, could be illegal and immoral, nothing
has been brought out by the prosecution to show that the accused had
provoked, incited or induced the wife to commit suicide."
19. After holding as aforesaid, the Court found on facts and especially referring to suicide note that one can infer that the deceased was so possessive of her husband, and was always under an emotional stress that she might lose her husband and that apart she had exonerated the husband and accordingly it would not come within the scope and ambit of Section 306 IPC.
20. Coming to the facts of the present case, it is seen that the factum of divorce has not been believed by the learned trial Judge and the High Court. But the fact remains is that the husband and the wife had started living separately in the same house and the deceased had told her sister that there was severance of status and she would be going to her parental home after the 'Holi' festival. True it is, there is some evidence about the illicit relationship and even if the same is proven, we are of the considered opinion that cruelty, as envisaged under the first limb of Section 498A IPC would not get attracted. It would be difficult to hold that the mental cruelty was of such a degree that it would drive the wife to commit suicide. Mere extra-marital
relationship, even if proved, would be illegal and immoral, as has beensaid in Pinakin Mahipatray Rawal (supra), but it would take a different character if the prosecution brings some evidence on record to show that the accused had conducted in such a manner to drive the wife to commit suicide. In the instant case, the accused may have been involved in an illicit relationship with the appellant no.4, but in the absence of some other acceptable evidence on record that can establish such high degree
of mental cruelty, the Explanation to Section 498A which includes cruelty to drive a woman to commit suicide, would not be attracted.
21. Presently, adverting to the involvement of the other accused persons, that is, appellant nos. 1, 3 and 4, we find that there is no allegation of any kind of physical torture. The evidence brought on record against them with regard to cruelty is absolutely sketchy and not convincing. It has been alleged that the mother-in-law used to rob her money which she earned as wages. The said fact has really not been
established. As far as appellant no. 4, Jesuben, is concerned, there is only one singular allegation that at one public place, i.e. in a 'mela', she had threatened the deceased that she would be divorced by her husband. On the basis of the said evidence, it is difficult to sustain the conviction under Sections 306 and 498A IPC. Once we are holding that the accused-appellants are not guilty of the offence under Section
306 and 498A IPC, the conviction under Section 201 IPC is also not sustainable.
22. In view of the aforesaid analysis, the appeal is allowed, the conviction and sentence of all the appellants are set aside. As they are on bail, they be discharged of their bail bonds.
[SUDHANSU JYOTI MUKHOPADHAYA]
FEBRUARY 18, 2015.
 (2002) 5 SCC 177
 (2013) 7 SCC 108
 (2013) 10 SCC 48