______________________________________________________________________ vs Krishan Kumar on 11 October, 2017

IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA

Cr. Appeal No.87 of 2006

.
Decided on: 11th October, 2017

_
State of Himachal Pradesh ………Appellant.

Versus

Krishan Kumar …Respondent
_
Coram
Hon’ble Mr. Justice Sandeep Sharma, Judge.

Whether approved for reporting1? Yes
_
For the Appellant: Mr. M.L.Chauhan, Additional Advocate
General.

For the respondent: Mr. Rajesh Kumar, Advocate.

_
Sandeep Sharma, J. (Oral)

By way of instant criminal appeal filed under Section 378

of the Code of Criminal Procedure, challenge has been laid to the

impugned judgment of acquittal dated 30.11.2005, passed by

learned Chief Judicial Magistrate, District Kinnaur at Rekong Peo

H.P., in Criminal case No.22-2 of 2002, whereby respondent

( hereinafter referred to as the accused) came to be acquitted of the

charges framed against him under Section 498-A, 451 and 323 of

Indian Penal Code( hereinafter referred to as the IPC).

2 Briefly stated facts, as emerge from the record are that

on 26.03.2002, complainant namely Smt. Asha Kumari, who

happened to be wife of the accused, preferred a complaint Ex.PW1/B

Whether reporters of the Local papers are allowed to see the judgment?

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to the Superintendent of Police, Kinnaur at R/Peo, alleging therein

that she was married to the respondent/accused in the year, 1998 as

.

per local customs and rites and out of their wedlock, a son was born,

who at the time of lodging complaint, was of three years’ old.

Complainant further alleged that at the time of lodging complaint

Ex.PW1/B, she was pregnant. As per complainant, on 24.03.2002, the

accused gave merciless beatings to her under the influence of liquor,

as a result of which, she was compelled to leave her matrimonial

house and came to the house of her parents on 25.03.2002.

Complainant further alleged that on 25.03.2002, at about 8-9 PM, the

accused again forcibly entered into the house of her parents under

the influence of liquor and started giving beatings to her and

thereafter, extended threats to snatch the child from her. As per

complainant, her mother, who was present at that relevant time, was

also given beatings by the accused. On the basis of aforesaid

complaint, formal FIR Ex.PW8/A, came to be registered at police

Station, Sangla, District Kinnaur, against the respondent/accused.

After completion of the investigation, police presented the challan in

the competent court of law i.e. learned Chief Judicial Magistrate,

Kinnaur at R/Peo, against the accused for having committed the

offences punishable under Sections 498-A, 451 and 323 of IPC.

3 Learned trial Court on being satisfied that a prima-facie

case exist against the accused, framed charges against him under

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Sections 498-A, 451 and 323 of IPC, to which he pleaded not guilty

and claimed trial.

.

4 Prosecution with a view to prove its case examined as

many as 13 witnesses, whereas respondent/accused in his statement

recorded under Section 313 Cr.P.C., denied the case of the

prosecution in toto. However, fact remains that he did not lead any

evidence in support of his defence. Learned trial Court after having

examined the evidence led on record by the prosecution, acquitted

the respondent/accused of aforesaid charges framed against him. In

the aforesaid background, appellant/State has approached this Court

in the instant proceedings, seeking therein conviction of respondent/

accused for having committed the offences punishable under

Sections 498-A, 451 and 323 of IPC, after setting aside the judgment

of acquittal recorded by the learned trial Court.

5 Mr. M.L.Chauhan, learned Additional Advocate General,

strenuously argued that the impugned judgment of acquittal

recorded by the learned trial Court is not sustainable as the same is

not based upon the correct appreciation of the evidence adduced on

record by the respective parties, hence deserve to be set-aside. Mr.

Chauhan, while referring to the evidence led on record by the

prosecution, vehemently argued that bare perusal of the evidence

led on record by the prosecution suggest that prosecution was able

to prove its case beyond reasonable doubt that complainant was

given merciless beatings by the accused and he also maltreated the

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complainant for dowry and as such, there was no scope left for court

below to acquit the respondent/accused of the charges framed

.

against him. While making prayer to accept this appeal and

thereafter convict the respondent/accused, learned Additional

Advocate General, forcifully contended that impugned judgment of

acquittal recorded by the court below is result of misreading,

misinterpretation and misconstruction of evidence led on record by

the prosecution and as such, same deserve to be quashed and set-

aside. r
6 Mr. Rajesh Kumar, learned counsel representing the

respondent/accused, while refuting the aforesaid submission having

been made by learned Additional Advocate General, contended that

there is no illegality and infirmity in the impugned judgment of

acquittal, rather same is based upon the correct appreciation of the

evidence adduced on record by the prosecution and as such, present

appeal deserves to be dismissed. Mr. Rajesh, while referring to the

evidence led on record by the prosecution, contended that none of

prosecution witness was able to depose before the court below with

regard to the date, time when accused allegedly gave beatings to the

complainant. He further contended that for proving the guilt of

respondent/ accused for having committed the offence punishable

under Section 498-A of IPC, it was incumbent upon the learned court

below to prove beatings/cruelty strictly in terms of definition of

cruelty, as defined under Section 498-A of IPC. While referring to the

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complaint made by complainant Ex.PW1/B, Mr. Rajesh , learned

counsel, contended that it is the own case of the complainant that

.

she left her matrimonial house of her own and she was never thrown

out of the house by the respondent/ accused. Learned counsel

further stated that there is no evidence led on record by the

prosecution suggestive of the fact that dowry, if any, was ever

demanded by the respondent/accused and as such, no conviction, if

any, under Section 498-A of IPC could be recorded against the

respondent/accused. Lastly, Mr. Rajesh, learned counsel representing

the respondent/ accused, contended that there is no medical

evidence adduced on record by the prosecution to prove beatings, if

any, allegedly given by the respondent/accused on 24.3.2002 and

25.3.2002. With the aforesaid submissions, learned counsel

representing the respondent/ accused, sought dismissal of the

present appeal being devoid of any merit.

7 I have heard learned counsel representing the parties

and have carefully gone through the record made available.

8 In the instant case, as clearly emerge from the record

that though all the prosecution witnesses while proving the case of

the prosecution unequivocally stated that the respondent/accused

used to give beatings to the complainant, but interestingly, none of

the prosecution witnesses specifically supported the case of the

prosecution that complainant was given beatings by the respondent/

accused on 24.3.2002, firstly at her matrimonial house and

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thereafter, on 25.3.2002 at her parental house under the influence of

liquor. Though PW-1, Smt. Asha Devi(complainant), PW-2, Smt. Karta

.

Devi (mother of the complainant), PW-3,Sh. Rattan Kumar (brother),

PW-4, Sh. Salig Ram ( father of the complainant) and PW-5, Sh.

Thakur Singh, who happened to be Pradhan of Gram Panchayat,

Sapni, deposed before the court below that complainant was given

beatings by the respondent/accused, but as has been taken note

above, there is nothing in the statements of these witnesses, from

where it can be inferred that beatings, if any, were given to the

complainant by the accused/respondent in their presence. Moreover,

aforesaid witnesses are interested witnesses being closely related to

the complainant and as such, court below was required to exercise

due cautious and care while ascertaining the guilty of the

respondent/accused on the basis of the statements having been

made by aforesaid interested witnesses.

9 PW-6, Smt. Laxman Devi, who happened to be an eye

witness of the incident though corroborated the version put forth by

the aforesaid prosecution witnesses that respondent/accused used to

give beatings to the complainant, but if her statement is read in its

entirety, it nowhere supports the case of the prosecution that on the

date of alleged incident on 24.3.2002, respondent/accused gave

beatings to the complainant, as a result of which, she suffered injury.

Apart from above, other witnesses are official witnesses, whose

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depositions may not be very relevant to ascertain the correctness

and genuineness of the findings recorded by the learned trial Court.

.

10 Conjoint reading of the depositions of aforesaid witnesses

are/were certainly not sufficient to connect the respondent/accused

with the offence allegedly committed by him. As per PW-1 i.e.

complainant, after her marriage accused used to beat her, as a result

of which, she was compelled to leave her house and she went to her

parents house. She further stated that she is having a child of three

years old and after alleged incident, she reported the matter to the

Pradhan and thereafter, she went to the house of her parents. It has

also come in her statement that on the night of 24.3.2002 accused

forcibly entered into the house of her parents by kicking the door and

thereafter, straightway came to her, where her son was sleeping and

forcefully took the son with him. She categorically admitted that

accused gave beatings to her as he was not happy with her visits to

the house of her parents. All the witnesses, especially PW-2, PW-3,

PW-4 and PW-5 have supported the aforesaid version, but as has

been discussed hereinabove, none of these witnesses including the

complainant (PW-1) stated something specific with regard to date

on which she was compelled to leave the house of the

respondent/accused on account of beatings allegedly given by the

respondent/accused.

11 By now it is well settled that to prove case under Section

498-A of IPC, it is incumbent upon the prosecution to prove cruelty, if

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any, strictly in terms of explanation given to Section 498-A of IPC. At

this stage, it may be profitable to reproduce Section 498 A of IPC 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 purposes 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.].”

12 It is quite apparent from the reading of aforesaid

provision of law that to prove cruelty within the meaning of Section

498 of IPC, cruelty must be 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

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, is also required to be

proved.

13 In the instant case, neither the complainant nor any other

material witnesses, as have been discussed hereinabove, have

uttered a single word with regard to unlawful demand of dowry, if

any, by the accused or any of his family members. Similarly, none of

prosecution witnesses including complainant stated before the Court

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below that the conduct of the accused or beatings allegedly given by

him to the complainant was such a nature that at some point of time

.

complainant thought to commit suicide. Similarly, this Court was

unable to lay its hand to any medical evidence adduced on record by

the prosecution to prove injury, if any, allegedly caused to the

complainant by the beatings allegedly given by the

respondent/accused on the date of incident i.e. on 24.3.2002.

14 In the instant case, it is the case of the prosecution that

the beatings were given to the complainant at her parental house by

respondent/accused by entering into the house of her father Sh. Salig

Ram, but there is no medical evidence on record to prove aforesaid

story put forth by the prosecution. Though, it emerge from the

depositions made by aforesaid prosecution witnesses that accused

had forcibly entered into the house of the parents of the complainant,

but definitely there is no evidence led on record by the prosecution

with regard to injury, if any, caused to the body of the complainant

on account of injury allegedly inflicted by the respondent/accused at

the parental house of the complainant. Similarly, this Court finds that

there are contradictions with regard to forcible entry of

respondent/accused into the parental house of the complainant

because as per prosecution accused entered into the room by

breaking the door but no piece of door was taken into custody by the

police, rather aforesaid version of complainant has been not

corroborated by other witnesses because they categorically deposed

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before the court below that accused entered in to the house only

when the door was open.

.

15 Our own High Court in State of H.P. Versus Surinder

Kumar, latest HLJ (2004)174, which has been also taken note by the

learned trial Court below, has held that though there may be dispute

between the parties and their relations may not be normal but if

there is no evidence of harassment or cruelty as defined under

Section 498-A of IPC, accused cannot be held guilty of having

committed the offence punishable under Section 498-A of IPC.

16 Their lordships of Hon’ble the Supreme Court in Raj Rani

v. State (Delhi Admn.) reported in AIR 2000 SC 3559 have held that it

is not enough that the deceased felt those words hurting. It must be

subjected to judicial scrutiny and the Court must be in a position to

hold that those words were sufficiently hurting enough as to amount

to ‘cruelty’ falling within the parameters fixed in S. 498-A of the

Indian Penal Code. Their lordships have held as under:

“3. Both sides submitted that the only reliable evidence which

can be looked into is the suicide note left behind by Veena
which should have been scribed by her on 17-4-1984, the date
of the commission of suicide.

4. We have gone through the entire writings contained in the
suicide note. It makes a serious castigation against her husband
for being an addict to narcotic drugs. Then she made a general
allegation against her mother-in-law and in a lesser degree
towards the appellant. But unfortunately she did not advert to
any concrete instance which can be termed as cruelty as
defined in
Section 498A of the Indian Penal Code. The
utterances said to have been made by the appellant towards
the deceased were to her chagrin and she had taken them very
seriously in the suicide note she described such utterances as
not worthy of reproduction.

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5. It is not enough that the deceased felt those words hurting, it
must be subjected to judicial scrutiny and the Court must be in
a position to hold that those words were sufficiently hurting
enough as to amount to “cruelty” falling within the parameters
fixed in
Section 498A of the Indian Penal Code. The area

.

remains grey and vague. Not a single word said to have been

spoken to by the appellant as against the deceased had been
put on record by the deceased in the suicide note in spite of the
fact that the said note is a very lengthy letter running into
several paragraphs. The tenor and language of the suicide note

would reflect that she was not an illiterate lady. As the Court is
rendered helpless to judge whether the words which deceased
heard from the appellant would amount to cruelty, it is far from
possibility for the Criminal Court to hold that she is guilty of the
offence of cruelty as envisaged in the section. It is also to be
pointed out that the deceased did not mention a single deed
which the appellant would have done against her. All that is

said against the appellant were that she spoke same thing
which she took objectionable.”

17 Their lordships of Hon’ble Apex Court in Girdhar Shankar

Tawade v. State of Maharashtra reported in AIR 2002 SC 2078, have

held that in the absence of cogent evidence to bring home charge

under S. 498-A, accused was entitled to be acquitted. Their lordships

have held as under:

“16. We have already noted Section 498-A herein before in
this judgment and as such we need not delve upon the same in
greater detail herein excepting recording that the same stands

attributed only in the event of proof of cruelty by the husband
or the relatives of the husband of the woman. Admittedly, the
finding of the trial Court as regards the death negated suicide
with a positive finding of accidental death. If suicide is rule out

then in that event applicability of Section 498-A can be had only
in terms of explanation (b) thereto which in no uncertain terms
records harassment of the woman and the Statute itself
thereafter clarifies it to the effect that it is not every such
harassment but only in the event of such a harassment being
with a view to coerce her to 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- there is total absence of any of the
requirements of the Statute in terms of
Section 498-A. The
three letters said to have been written and as noticed earlier
cannot possibly lend any credence to the requirement of the
Statute or even a simple demand for dowry.”

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18 Their lordships of Hon’ble Apex Court in Manju Ram Kalita

v. State of Assam reported in (2009) 13 SCC 330 have held that

.

cruelty for purpose of S. 498-A is to be established in that context as

it may be different from other statutory provisions. It is to be

determined/ inferred by considering conduct of the man, weighing

gravity or seriousness of his acts and to find out as to whether it is

likely to drive the woman to commit suicide etc. Their lordships have

held as under:

“12 Issue no. 2 relates to the applicability of 498A I.P.C. As it
has been alleged by the complainant that she had been given

physical and mental torture by the appellant and it was not

possible for her to stay with the appellant after 1993 though
she was having seven months’ pregnancy at that time. She
gave birth to a male child in the hospital and the appellant did
not even come to see the child. The question would arise as to
whether in the facts and circumstances where the complainant
had left the matrimonial home and started living with her father

in 1993, could a case be registered against the appellant under
Section 498A I.P.C. in 1997?

13. The provisions of Section 498A IPC read 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 purposes of this section `cruelty’ means –

(a) any welful 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;

(b) harassment of the woman where such
harassment is with a view to coercing her to 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.”

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Cruelty has been defined by the explanation added to the
Section itself. The basic ingredients of
Section 498A I.P.C. are
cruelty and harassment.

14. In the instant case, as the allegation of demand of dowry

.

is not there, we are not concerned with clause (b) of the

explanation. The elements of cruelty so far as clause (a) is
concerned, have been classified as follows :

(i) any `wilful’ conduct which is of such a nature

as is likely to drive the woman to commit suicide;
or

(ii) any `wilful’ conduct which is likely to cause
grave injury to the woman; or

(iii) any `wilful’ act which is likely to cause danger
to life, limb or health, whether physical or mental
of the woman.

15 In S. Hanumantha Rao v. S. Ramani, AIR 1999 SC 1318,

this Court considered the meaning of cruelty in the context of
the provisions under
Section 13 of the Hindu Marriage Act, 1955

and observed that :

“mental cruelty broadly means, when either party
causes mental pain, agony or suffering of such a
magnitude that it severs the bond between the wife and

husband and as a result of which it becomes impossible
for the party who has suffered to live with the other
party. In other words, the party who has committed
wrong is not expected to live with the other party.”

17. In V. Bhagat v. Mrs. D. Bhagat, AIR 1994 SC 710, this court,
while dealing with the issue of cruelty in the context of
Section

13 of the Hindu Marriage Act, observed as under :

“17. …….It is not necessary to prove that the mental
cruelty is such as to cause injury to the health of the

petitioner. While arriving at such conclusion, regard
must be had to the social status, educational level of the
parties, the society they move in, the possibility or
otherwise of the parties ever living together in case they
are already living apart and all other relevant facts and
circumstances which it is neither possible nor desirable
to set out exhaustively. What is cruelty in one case may
not amount to cruelty in another case. It is a matter to
be determined in each case having regard to the facts
and circumstances of that case. If it is a case of
accusations and allegations, regard must also be had to
the context in which they were made………..

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The context and the set up in which the word `cruelty’
has been used in the section seems to us, that intention
is not necessary element in cruelty. That word has to be
understood in the ordinary sense of the term in
matrimonial affairs. If the intention to harm, harass or

.

hurt could be inferred by the nature of the conduct or

brutal act complained of, cruelty could be easily
established. But the absence of intention should not
make any difference in the case, if by ordinary sense in
human affairs, the act complained of could otherwise be

regarded as cruelty.”

18. In Mohd. Hoshan v. State of A.P.; (2002) 7 SCC 414, this
Court while dealing with the similar issue held that mental or
physical torture should be “continuously” practiced by the
accused on the wife. The Court further observed as under :

“Whether one spouse has been guilty of cruelty to the
other is essentially a question of fact. The impart of
complaints, accusations or taunts on a person
amounting to cruelty depends on various factors like the
sensitivity of the individual victim concerned, the social
r background, the environment, education etc. Further,

mental cruelty varies from person to person depending
on the intensity of sensitivity and the degree of courage
or endurance to withstand such mental cruelty. In other
words, each case has to be decided on its own facts to
decide whether the mental cruelty was established or
not.”

19. The Single Judge of the Bombay High Court in Sarla

Prabhakar Waghmare v. State of Maharashtra reported in 1990 CrLJ

407 has held that it is not every harassment or every type of cruelty

that would attract S. 498-A. It must be established that beating and

harassment was with a view to force wife to commit suicide or to fulfil

illegal demands of husband and in-laws. The Single Judge has held as

under:

“3. After incident of burning, the applicant had gone to stay
with her parents at Nandura and from there she filed the
proceedings under
Section 125, Criminal Procedure Code, at
Malkapur. The proceedings were withdrawn by her in view of
the assurance that was given by her husband that he would
take her and keep her with him. It is difficult to appreciate this
conduct on the part of the applicant. It is alleged that thereafter
again she was subjected to harassment and beating by the non-

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applicants. It is not every harassment or every type of cruelty
that would attract
Section 498-A, which reads as under, makes
it absolutely clear “498-A. 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, subject 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 purposes 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.”

After going through her evidence it does not appear that she
has conclusively established that the beating and harassment
was with a view to force her to commit suicide or to fulfil the
illegal demands of the non-applicants. The trial Court has
discussed this aspect at some length and has recorded a finding

that offence under Section 498-A, Indian Penal Code, is not
established. I do not see any reason to interfere with the same
in my revisional jurisdiction at the instance of the complainant,
particularly when the State has not challenged the impugned
order.”

20. The Single Judge of this Court in Jiwan Lal V/s State of

Himachal Pradesh, reported in Latest HLJ 2012 (HP) Vol. 1. 231 has

held that to constitute ‘cruelty’, under clause (b), there has to be

harassment to coerce her or any person related to her to meet any

unlawful demand and case has to be made out that there is a failure

to meet such demand. The Single Judge has held as under:

“22. “Cruelty” has not been defined in the Indian Penal Code
but the above explanations added to the Section spells out the
ingredients of the offence of “cruelty” which are cruelty and
harassment. The elements of cruelty so far as clause (a) is
concerned can be classified as follows:

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(i) any ‘willful’ misconduct which is of such a nature as
is likely to drive the woman to commit suicide; or

(ii) any ‘willful’ conduct which is likely to cause grave
injury to the woman; or

.

(iii) any ‘willful’ act which islikely to cause danger to life,
limb or health, whether physical or mental of the
woman.

23. In order to constitute “cruelty” under clause (b), there has
to be a harassment of the woman with a view to coerce her or
any person related to her to meet any unlawful demand for any
property or valuable security or a case is to be made out to the
effect that there is a failure by her or any person related to her
to meet such demand.

24. In Smt. Raj Rani v. State (Delhi Administration); AIR 2000
SC 3559 the apex Court held that while considering the case of
cruelty in the context to the provisions of
Section 498-A IPC, the
court must examine that allegations/accusations must be of a

very grave nature and should be proved beyond reasonable
doubt.

25. Further, in another case Girdhar Shankar Tawade v. State
of Maharashtra, AIR 2002 SC 2078, the Supreme Court held that
“cruelty” has to be understood having a specific statutory
meaning provided in
Section 498-A I.P.C. and there should be a

case of continuous state of affairs of torture by one to another.

26. Taking note of the above judgments amongst others
Supreme Court in
Manju Ram Kalita v. State of Assam 2009 (2)
S.L.J. (S.C.) 1036 observed that “cruelty” for the purpose of

Section 498-A Indian Penal Code is to be established in the
context of
S. 498-A IPC as it may be different from other
statutory provisions. It is to be determined/inferred by

considering the conduct of the man, weighing the gravity or
seriousness of his acts and to find out as to whether it is likely
to drive the woman to commit suicide etc. It is to be established
that the woman has been subjected to cruelty

continuously/persistently or at least in close proximity of time of
lodging the complaint. Petty quarrels cannot be termed as
‘cruelty’ to attract the provisions of
Section 498-A IPC. Causing
mental torture to the extent that it becomes unbearable may be
termed as “cruelty”.”

21. Their Lordships of the Hon’ble Supreme Court in case

Shobha Rani v. Madhukar Reddi reported in AIR 1988 SC 121 have

explained the term “cruelty” as under:

“4. Section 13(1)(i-a) uses the words “treated the
petitioner with cruelty”. The word “cruelty” has not been

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defined. Indeed it could not have been defined. It has been
used in elation to human conduct or human behaviour. It is the
conduct in relation to or in respect of matrimonial duties

.

and obligations. It is a course of conduct of one which is

adversely affecting the other. The cruelty may be mental or
physical, intentional or unintentional. If it is physical the court
will have no problem to determine it. It is a question of fact and

degree. If it is mental the problem presents difficulty.
First, the enquiry must begin as to the nature of the cruel
treatment. Second, the impact of such treatment in the mind
of the spouse. Whether it caused reasonable apprehension that

it would be harmful or injurious to live with the other. Ultimately,
it is a matter of inference to be drawn by taking into account
the nature of the conduct and its effect on the complaining
spouse. There may, however, be cases where the conduct

complained of itself is bad enough and per se unlawful or

illegal. Then the impact or the injurious effect on the other
spouse need not be enquired into or considered. In such cases,
the cruelty will be established if the conduct itself is proved or
admitted.

5. It will be necessary to bear in mind that there has been
marked change in the life around us. In matrimonial duties

and responsibilities in particular, we find a sea change.
They are of varying degrees from house to house or person to

person. Therefore, when a spouse makes complaint about the
treatment of cruelty by the partner in life or relations, the Court

should not search for standard in life. A set of facts stigmatised
as cruelty in one case may not be so in another case. The
cruelty alleged may largely depend upon the type of life the
parties are accustomed to or their economic and social
conditions. It may also depend upon their culture and
human values to which they attach importance. We, the
judges and lawyers, therefore, should not import our own
notions of life. We may not go in parallel with them. There
may be a generation gap between us and the parties. It would
be better if we keep aside our customs and manners. It would
be also better if we less depend upon precedents. Because as

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– 18 –

Lord Denning said in Sheldon v. Sheldon, [1966] 2 All E.R.
257 (259) “the categories of cruelty are not closed.” Each case
may be different. We deal with the conduct of human beings

.

who are not generally similar. Among the human beings there

is no limit to the kind of conduct which may constitute cruelty.
New type of cruelty may crop up in any case depending upon
the human behaviour, capacity or incapability to tolerate the

conduct complained of. Such is the wonderful/realm of cruelty.”

22. Their Lordships of the Hon’ble Supreme Court in Samar

Ghosh vs. Jaya Ghosh reported in (2007) 4 SCC 511, have

“98.

r to
enumerated some instances of human behaviour, which may be

important in dealing with the cases of mental cruelty, as under:

On proper analysis and scrutiny of the judgments of this

Court and other Courts, we have come to the definite conclusion
that there cannot be any comprehensive definition of the
concept of ‘mental cruelty’ within which all kinds of cases of

mental cruelty can be covered. No court in our considered view
should even attempt to give a comprehensive definition of
mental cruelty.

99. Human mind is extremely complex and human behaviour

is equally complicated. Similarly human ingenuity has no bound,
therefore, to assimilate the entire human behaviour in one
definition is almost impossible. What is cruelty in one case may

not amount to cruelty in other case. The concept of cruelty
differs from person to person depending upon his upbringing,
level of sensitivity, educational, family and cultural background,
financial position, social status, customs, traditions, religious
beliefs, human values and their value system.

100. Apart from this, the concept of mental cruelty cannot
remain static; it is bound to change with the passage of time,
impact of modern culture through print and electronic media and
value system etc. etc. What may be mental cruelty now may
not remain a mental cruelty after a passage of time or vice

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versa. There can never be any strait-jacket formula or fixed
parameters for determining mental cruelty in matrimonial
matters. The prudent and appropriate way to adjudicate the

.

case would be to evaluate it on its peculiar facts and

circumstances while taking aforementioned factors in
consideration.

101. No uniform standard can ever be laid down for guidance,
yet we deem it appropriate to enumerate some instances of
human behaviour which may be relevant in dealing with the
cases of ‘mental cruelty’. The instances indicated in the

succeeding paragraphs are only illustrative and not exhaustive.

(i) On consideration of complete matrimonial life of the
parties, acute mental pain, agony and suffering as would not
make possible for the parties to live with each other could come

within the broad parameters of mental cruelty.

(ii) On comprehensive appraisal of the entire matrimonial
life of the parties, it becomes abundantly clear that situation is
such that the wronged party cannot reasonably be asked to put

up with such conduct and continue to live with other party.

(iii) Mere coldness or lack of affection cannot amount to

cruelty, frequent rudeness of language, petulance of manner,
indifference and neglect may reach such a degree that it makes

the married life for the other spouse absolutely intolerable.

(iv) Mental cruelty is a state of mind. The feeling of deep
anguish, disappointment, frustration in one spouse caused by
the conduct of other for a long time may lead to mental
cruelty.

(v) A sustained course of abusive and humiliating treatment
calculated to torture, discommode or render miserable life of
the spouse.

(vi) Sustained unjustifiable conduct and behaviour of one
spouse actually affecting physical and mental health

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– 20 –

of the other spouse. The treatment complained of and the
resultant danger
or apprehension must be very grave, substantial and

.

weighty.

(vii) Sustained reprehensible conduct, studied neglect,
indifference or total departure from the normal standard of

conjugal kindness causing injury to mental health or deriving
sadistic pleasure can also amount to mental cruelty.

(viii) The conduct must be much more than jealousy,

selfishness, possessiveness, which causes unhappiness
and dissatisfaction and emotional upset may not be a ground
for grant of divorce on the ground of mental cruelty.

(ix) Mere trivial irritations, quarrels, normal wear and tear of

the married life which happens in day to day life would not be
adequate for grant of divorce on the ground of mental cruelty.

(x) The married life should be reviewed as a whole and a few

isolated instances over a period of years will not amount to
cruelty. The ill-conduct must be persistent for a fairly
lengthy period, where the relationship has deteriorated to an

extent that because of the acts and behaviour of a spouse,
the wronged party finds it extremely difficult to live with the

other party any longer, may amount to mental cruelty.

(xi) If a husband submits himself for an operation of
sterilization without medical reasons and without the
consent or knowledge of his wife and similarly if the wife
undergoes vasectomy or abortion without medical reason or
without the consent or knowledge of her husband, such an act
of the spouse may lead to mental cruelty.

(xii) Unilateral decision of refusal to have intercourse for
considerable period without there being any physical incapacity
or valid reason may amount to mental cruelty.

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(xiii) Unilateral decision of either husband or wife after
marriage not to have child from the marriage may
amount to cruelty.

.

(xiv) Where there has been a long period of continuous
separation, it may fairly be concluded that the matrimonial bond
is beyond repair. The marriage becomes a fiction though

supported by a legal tie. By refusing to sever that tie, the law in
such cases, does not serve the sanctity of marriage; on the
contrary, it shows scant regard for the feelings and emotions of
the parties. In such like situations, it may lead to mental

cruelty.”

23. Their Lordships of the Hon’ble Supreme Court in Manisha

Tyagi vs. Deepak Kumar reported in 2010(1) Divorce Matrimonial

Cases 451, have explained the term ‘cruelty’ as under:

“24. This is no longer the required standard. Now it would be

sufficient to show that the conduct of one of the spouses is so
abnormal and below the accepted norm that the other spouse
could not reasonable be expected to put up with it. The conduct

is no longer required to be so atrociously abominable which
would cause a reasonable apprehension that would be harmful or

injurious to continue the cohabitation with the other spouse.
Therefore, to establish cruelty it is not necessary that physical
violence should be used. However, continued ill-treatment

cessation of marital intercourse, studied neglect, indifference of
one spouse to the other may lead to an inference of cruelty.
However, in this case even with aforesaid standard both the
Trial Court and the Appellate Court had accepted that the
conduct of the wife did not amount to cruelty of such a nature to
enable the husband to obtain a decree of divorce.”

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– 22 –

24. Their Lordships of the Hon’ble Supreme Court in Ravi

Kumar vs. Julumidevi reported in (2010) 4 SCC 476, have explained

.

the term ‘cruelty’ as under:

“19. It may be true that there is no definition of cruelty under the
said Act. Actually such a definition is not possible. In matrimonial

relationship, cruelty would obviously mean absence of mutual
respect and understanding between the spouses which embitters
the relationship and often leads to various outbursts of behaviour
which can be termed as cruelty. Sometime cruelty in a

matrimonial relationship may take the form of violence,
sometime it may take a different form. At times, it ma be just an
attitude or an approach. Silence in some situations may amount
to cruelty.

20.

r Therefore, cruelty in matrimonial behaviour defies any

definition and its categories can never be closed. Whether the
husband is cruel to his wife or the wife is cruel to her husband
has to be ascertained and judged by taking into account the
entire facts and circumstances of the given case and not by any

predetermined rigid formula. Cruelty in matrimonial case can be
of infinite variety – it may be subtle or even brutal and may be
by gestures and word. That possible explains why Lord Denning

in Sheldon v. Sheldon held that categories of cruelty in
matrimonial case are never closed.

21. This Court is reminded of what was said by Lord Reid in
Gollins v. Gollins about judging cruelty in matrimonial cases. The
pertinent observations are (AC p.660)

“.. In matrimonial cases we are not concerned with the
reasonable man as we are in cases of negligence. We are dealing
with this man and this woman and the fewer a priori assumptions
we make about them the better. In cruelty cases one can hardly
ever even start with a presumption that the parties are
reasonable people, because it is hard to imagine any cruelty
case ever arising if both the spouses think and behave as
reasonable people.”

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– 23 –

22. ” About the changing perception of cruelty in matrimonial
cases, this Court observed in
Shobha Rani v. Madhukar Reddi at
AIR p. 123, para 5 of the report: (SCC p.108, para 5)

.

“5. It will be necessary to bear in mind that there has been (a)

marked change in the life around us. In matrimonial duties and
responsibilities in particular, we find a sea change. They are of
varying degrees from house to house or person to person.

Therefore, when a spouse makes complaint about the treatment
of cruelty by the partner in life or relations, the court should not
search for standard in life. A set of facts stigmatized as cruelty in
one case may not be so in another case. The cruelty alleged may

largely depend upon the type of life the parties are accustomed
to or their economic and social conditions. It may also depend
upon their culture and human values to which they attach
importance. We, the Judges and lawyers, therefore, should not

import our own notions of life. We may not go in parallel with

them. There may be a generation gap between us and the
parties.”

25. Reliance is also placed on judgment rendered by the

Hon’ble Apex Court in case titled Pinakin Mahipatray Rawal v. State of

Gujrat, (2013) 10 SCC 48, relevant paras of which are reproduced

herein below:-

“20.We have to examine the correctness or otherwise of the

findings recorded by the trial Court, affirmed by the High Court,
as to whether the alleged relationship between A-1 and A-2 has
in any way constituted cruelty within the meaning of explanation
to
Section 498A IPC. The facts in this case have clearly proved
that the A-1 has not ill-treated the deceased, either physically or
mentally demanding dowry and was living with A-1, in the
matrimonial home till the date, she committed suicide. Cruelty
includes both physical and mental cruelty for the purpose
of
Section 498A. Section 498A IPC 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.

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– 24 –

Explanation.- For the purposes 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.

21. This Court in Girdhar Shankar Tawade Vs. State of
Maharashtra, (2002) 5 SCC 177, examined the scope of the

explanation and held as follows :- (SCC p.180, para3)

“3. 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
r 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 498A.”

22. In Gananath Pattnaik Vs. State of Orissa, (2002) 2 SCC 619,
this Court held that the concept of cruelty under
Section

498A IPC and its effect under Section 306 IPC varies from
individual to individual also depending upon the social and
economic status to which such person belongs. This Court held
that cruelty for the purpose of offence and the said Section need
not be physical. Even mental torture or abnormal behavior may
amount to cruelty or harassment in a given case.

22. 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 498A 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
498A IPC. Mental cruelty, of course, varies from person to

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– 25 –

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
extra marital 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.”

26. It is quite apparent from the aforesaid exposition of law

laid down by the Hon’ble Apex Court as well as this Court that cruelty

for the purpose of Section 498-A IPC, is required to be established in

the context of Section 498 IPC. While ascertaining the guilt of the

accused, if any, under Section 498 of the IPC, it needs to be

determined/inferred by considering the conduct of the man, taking

into consideration gravity or seriousness of his acts and to find out as

to whether his aforesaid act is likely to drive the woman to commit

suicide etc. Apart from above, it also needs to be proved beyond

reasonable doubt that woman has been subjected to cruelty

continuously/persistently or at least in close proximity of time of

lodging the complaint. Definitely, petty quarrels and difference of

opinion, if any, between husband and wife, cannot be termed as

‘cruelty’ so as to attract the provisions of Section 498-A IPC. Though,

in the aforesaid judgments, Hon’ble Apex Court has held that there

can never by any strait jacket formula or fixed parameter for

determining mental cruelty in matrimonial matters and the prudent

and appropriate way to adjudicate such cases, would be to evaluate it

on the peculiar facts and circumstances of the cases, but Hon’ble

Apex Court in Manisha Tyagi case (Supra) has categorically held that

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– 26 –

to establish cruelty, it is not necessary that physical violence should

be used, rather continued ill-treatment, cessation of marital

.

intercourse, studied neglect, indifference of one spouse to the other,

may lead to inference of cruelty. Hon’ble apex Court in Ravi Kumar

case (supra) has held that a set of facts stigmatized as cruelty in one

case may not be so in another case. Therefore, when a spouse makes

complaint about treatment of cruelty by the partner in life or

relations, the Court should not search for standard in life. Cruelty

alleged may largely depend upon the type of life the parties are

accustomed to or their economic and social conditions.

27. In the case at hand, as has been discussed in detail, there

is no specific evidence led on record by the complainant -prosecutrix

with regard to the cruelty, if any meted to her by the respondent-

accused, save and except allegations of beatings, which have been

also not proved. None of the prosecution witness including

complainant-prosecutrix, has stated something specific with regard to

the date/timing of incident of alleged beatings, on the basis of which,

formal FIR came to be registered against the respondent-accused.

Leaving everything aside, there is no whisper in the statement of

complainant-prosecutrix or other prosecution witnesses with regard

to the unlawful demand for property or valuable security by the

respondent-accused. As has been noticed above, applicability of

section 498, can be only in terms of explanation (b) thereto, which

itself specify that it is not every such harassment but only in the

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– 27 –

event of such a harassment being with a view to coerce her to any

person related to her to meet any unlawful demand for any property

.

or any valuable security or on account of failure by her or any person

related to her to meet such demand. In the case at hand, there is

total absence of any of the aforesaid requirements as envisaged

under Section 498-A and as such, learned court below rightly

acquitted the respondent accused of the offence punishable under

Section 498-A of IPC.

28. Consequently, in view of the detailed discussion made

hereinabove, this Court sees no reason to differ with the judgment of

acquittal recorded by the learned trial Court, which otherwise

appears to be based upon the correct appreciation of the evidence as

well as law on the point. Accordingly, the present appeal is

dismissed being devoid of any merit. Pending applications, if any, are

disposed of.

(Sandeep Sharma)
Judge
11th October, 2017

(shankar)

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