Ramesh Chand vs State Of Himachal Pradesh on 11 April, 2017

IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA

Cr. Revision No. 49 of 2010
Decided on: April 11, 2017

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Ramesh Chand ………Petitioner

Versus

State of Himachal Pradesh …Respondent
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Coram
Hon’ble Mr. Justice Sandeep Sharma, Judge.
Whether approved for reporting1? Yes.

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For the petitioner: Mr. Vinay Thakur, Advocate.

For the respondent: Mr. Ramesh Thakur, Deputy Advocate
r General.
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Sandeep Sharma, J. (Oral)

Instant criminal revision petition is directed against

judgment dated 9.12.2009 passed by the learned Sessions Judge,

Sirmaur at Nahan, in Cr. Appeal No. 08-Cr.A/10 of 2006, affirming

judgment and order of conviction dated 16.2.2006/17.2.2006 passed

by the Additional Chief Judicial Magistrate, Rajgarh, District Sirmaur,

Himachal Pradesh in Cr. Case No. 22/2 of 2005, whereby the learned

trial Court while holding petitioner guilty of having committed offence

punishable under Section 498A IPC, convicted and sentenced him to

undergo simple imprisonment, for a period of six months and to pay a

fine of `3,000/- and in default of payment of fine, to further undergo

simple imprisonment for two months.

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

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

the complainant, namely Promila Devi, who happened to be wife of the

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petitioner Ramesh Chand, lodged an FIR i.e. Ext. PW-1/A in the Police

Station, stating therein that her marriage was solemnized with

petitioner on 23.6.2004 according to Hindu rites and ceremonies and

local customs. After two months of marriage, in the month of August,

2004, petitioner and other accused persons i.e. father-in-law, mother-

in-law and sister-in-law of the complainant, started maltreating her.

She further stated that she kept on tolerating the atrocities of the

petitioner so that family does not break. She also complained that she

was not provided with clothes and shoes to wear and whenever she

asked her husband for such things, he did not behave properly.

Complainant further reported to the police that petitioner repeatedly

teased her that she had not brought any money at the time of her

marriage and she replied that since her parents are poor, she was not

able to give them anything. Complainant further reported that

whenever, accused accompanied her to her parents’ house in village

Dhali Dibber, Tehsil Rajgarh, he did not stay with her, rather visited

other ladies in the village. She further alleged that with the passage of

time, petitioner started proclaiming that he would not keep her at his

house. His beatings increased with the passage of time. Finally, after

becoming totally helpless, she narrated entire facts to her parents and

sister, who repeatedly counseled petitioner to behave properly with the

complainant but to no avail. Complainant specifically complained that

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her mother-in-law, father-in-law and sister-in-law, also misbehaved

with her and she was not provided meals etc. As per complainant, she

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became pregnant but despite that petitioner kept on committing

atrocities upon her and finally in August, 2004, she with her two

months old pregnancy, was left in the house of her parents, by the

mother-in-law, Smt. Kaulan Devi. Complainant while lodging report on

9.4.2015, also proclaimed that she was pregnant for the last nine

months and during this period, nobody from her in-laws bothered to

maintain her and as such sought action against her in-laws including

her husband, in terms of Section 498A IPC.

3. Subsequently, on the basis of investigation carried out by

the police, pursuant to registration of FIR, as referred above, and on

the conclusion thereof, police presented challan in the competent court

of law. Learned trial Court being satisfied that prima facie case exists

against petitioner, proceeded to frame charge under Section 498A IPC

against the petitioner as well as other family members of the petitioner,

to which they pleaded not guilty and claimed trial. Accused also got

recorded their statements under Section 313 CrPC, wherein they

denied the case of the prosecution in toto. However, the fact remains

that the learned trial Court below, on the basis of material adduced on

record by the prosecution held petitioner guilty of having committed

offence punishable under Section 498A IPC and acquitted other co-

accused.

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4. Being aggrieved with the aforesaid judgment passed by

learned trial Court, petitioner preferred an appeal before the learned

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Sessions Judge, Sirmaur at Nahan, who also dismissed the same while

upholding the judgment of conviction passed by learned trial Court.

Hence, this petition by the petitioner praying therein for his acquittal

after setting aside judgments of conviction passed by the learned

Courts below.

5. Mr. Vinay Thakur, learned counsel representing the

petitioner, vehemently argued that impugned judgments of conviction

recorded by the Courts below are not sustainable as the same are not

based upon correct appreciation of evidence adduced on record by the

respective parties, hence deserve to be set aside. Mr. Thakur, while

inviting attention of this Court to the impugned judgments passed by

the learned Courts below, strenuously argued that bare perusal of

same suggests that the courts below have not appreciated evidence in

its right perspective, as a result of which, erroneous findings have come

on record to the detriment of the petitioner, who is an innocent person.

Mr. Vinay Thakur specifically invited attention of this Court to Section

498A IPC, to state that cruelty, if any, was required to be proved by the

prosecution within the ambit of explanation as provided to Section

498A IPC, but in the instant case, bare perusal of evidence available on

record nowhere suggests that prosecution was able to prove beyond

reasonable doubt that cruelty, if any, was meted out to the

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complainant by the petitioner, as defined under Section 498A IPC, and,

as such, no conviction, if any, could be recoded by the learned Courts

.

below. Mr. Thakur, while advancing arguments fairly conceded that

though defence was taken by the petitioner that complainant was not

his legally wedded wife, but it stands duly proved on record that

complainant is/was legally wedded wife of the petitioner and as such

that aspect of the matter need not be looked into by this Court.

6. While concluding his arguments, Mr. Thakur made this

Court to travel through the evidence adduced on record by the

prosecution to demonstrate that there is no iota of evidence suggestive

of the fact that complainant was maltreated and dowry, if any, was ever

demanded, which could compel her to cause grave injury or danger to

her life. Mr. Vinay Thakur, also contended that approach adopted by

the learned Courts below also can not be accepted because, on the

same set of evidence, other co-accused have been acquitted whereas,

petitioner has been held guilty of having committed offence punishable

under Section 498A IPC, as such judgments passed by learned Courts

below deserve to be set aside. Mr. Vinay Thakur, also stated that both

the learned Courts below failed to take note of the fact that as per own

statement of the complainant, she had left house of petitioner in the

month of August, 2004, whereas, FIR in question was lodged in the

month of April, 2005 i.e. approximately after nine months of leaving the

house by the complainant. Mr. Thakur, further contended that there is

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no explanation worth the name that why complainant kept mum for

nearly nine months, if cruelty, if any, was meted to her by the

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petitioner and his family members.

7. Mr. Ramesh Thakur, Deputy Advocate General, supported

the impugned judgments passed by the courts below. Mr. Ramesh

Thakur vehemently argued that bare perusal of the impugned

judgments of conviction recorded by courts below suggests that same

are based upon correct appreciation of evidence adduced on record by

the respective parties and there is no scope of interference by his

Court, especially in view of the concurrent findings of fact and law

recoded by the courts below. Mr. Thakur, with a view to refute

aforesaid contentions having been made by the learned counsel

representing the petitioner, also invited attention of this Court to the

judgments passed by the courts below to demonstrate that each and

every aspect of the matter has been dealt with meticulously by the

Courts below while holding petitioner guilty of having committed

offence punishable under Section 498-A IPC and as such there is no

illegality or infirmity in the impugned judgments and same deserve to

be upheld. While concluding his arguments,

8. Mr. Ramesh Thakur, Deputy Advocate General, reminded

this Court of its limited jurisdiction under Section 397 as far as re-

appreciation of evidence is concerned. He has placed reliance upon the

judgment passed by Hon’ble Apex Court in case State of Kerala versus

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Puttumana Illath Jathavedan Namboodiri (1999)2 Supreme Court

Cases 452, wherein it has been held as under:-

.

” In its revisional jurisdiction, the High Court can call for and examine the
record of any proceedings for the purpose of satisfying itself as to the
correctness, legality or propriety of any finding, sentence or order. In other
words, the jurisdiction is one of supervisory jurisdiction exercised by the High
Court for correcting miscarriage of justice. But the said revisional power

cannot be equated with the power of an appellate court nor can it be treated
even as a second appellate jurisdiction. Ordinarily, therefore, it would not be
appropriate for the High Court to re-appreciate the evidence and come to its
own conclusion on the same when the evidence has already been appreciated
by the Magistrate as well as Sessions Judge in appeal, unless any glaring
feature is brought to the notice of the High Court which would otherwise

tantamount to gross miscarriage of justice.”

9. I have heard learned counsel representing the parties and

have carefully gone through the record made available.

10. True, it is that while exercising the power under Section

397 of Criminal Procedure Code, this Court has very limited power to

re-appreciate the evidence available on record. But in the present case,

where accused has been convicted and sentenced under Sections 498-

A IPC, this Court solely with a view to ascertain that the judgments

passed by both the Courts below are not perverse and the same are

based upon correct appreciation of evidence available on record,

undertook an exercise to critically examine the evidence available on

record to reach fair and just decision in the case.

11. As far as scope of power of this Court while exercising

revisionary jurisdiction under Section 397 is concerned, the Hon’ble

Apex Court in Krishnan and another Versus Krishnaveni and

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another, (1997) 4 Supreme Court Case 241; has held that in case

Court notices that there is a failure of justice or misuse of judicial

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mechanism or procedure, sentence or order is not correct, it is

salutary duty of the High Court to prevent the abuse of the process or

miscarriage of justice or to correct irregularities/incorrectness

committed by inferior criminal court in its judicial process or illegality

or sentence or order. The relevant para of the judgment is reproduced

as under:-

“8. The object of Section 483 and the purpose behind conferring the
revisional power under Section 397 read with Section 401, upon the High

Court is to invest continuous supervisory jurisdiction so as to prevent
miscarriage of justice or to correct irregularity of the procedure or to mete out

justice. In addition, the inherent power of the High Court is preserved by
Section 482. The power of the High Court, therefore, is very wide. However,
the High Court must exercise such power sparingly and cautiously when the
Sessions Judge has simultaneously exercised revisional power under Section
397(1). However, when the High Court notices that there has been failure of

justice or misuse of judicial mechanism or procedure, sentence or order is not
correct, it is but the salutary duty of the High Court to prevent the abuse of
the process or miscarriage of justice or to correct irregularities/ incorrectness
committed by inferior criminal court in its judicial process or illegality of
sentence or order.”

12. While hearing arguments having been made by the learned

counsel representing the parties, this Court had occasion to peruse

records of the courts below, perusal whereof certainly compels this

Court to agree with the arguments having been made by the learned

counsel representing the petitioner that there was no occasion for the

Courts below to hold the petitioner guilty on the same set of evidence,

on the basis of which other co-accused were acquitted, because, bare

perusal of evidence led on record by the prosecution suggests that

allegations of cruelty, if any were not specifically against petitioner and

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there was no specific allegation of cruelty as provided under Section

498 IPC against the petitioner, which could compel the Courts below to

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record conviction under Section 498-A IPC against petitioner. Since,

there is no dispute, if any, with regard to the factum of marriage inter

se complainant and petitioner, this Court, need not look into that

aspect, as agreed by the learned counsel representing the petitioner

also. This Court, solely with a view to find answer to the arguments

having been made by the learned counsel representing the petitioner,

carefully perused Section 498-A IPC, perusal whereof certainly

suggests that ‘cruelty’, if any, is to be construed strictly in terms of

explanation given to aforesaid Section. At this stage, it may be

profitable to reproduce Section 498A 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.].”

13. Perusal of aforesaid provision of law, clearly suggest that if

husband or relatives of the husband of woman subject(s) such woman

to cruelty, would be liable to be punished with imprisonment for a

term, which may exceed to 3 years. For the purpose of this Section,

‘cruelty’ has been specifically defined. Hence, Courts below, while

adjudicating whether any cruelty is/was metered out to the

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complainant, were bound to ascertain the question with regard to

“cruelty”, if any, within parameters as provided in the definition of

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‘cruelty’ under Section 498-A IPC. This Court, after carefully examining

the evidence led on record by prosecution, sees substantial force in the

arguments having been made by the learned counsel representing the

petitioner that the prosecution was unable to prove on record that

complainant was meted cruelty as defined under Section 498A IPC and

as such no conviction, if any, could be recorded against the petitioner

under Section r 498A IPC. This Court, after carefully examining

evidence is also of the view that complainant made general allegations

and there is no specific allegation, if any, of demand of dowry either by

the petitioner or by his family members. There is nothing in the

statement of the complainant suggestive of the fact that demand was

ever made by petitioner or his family members, directly or indirectly,

from the complainant or from her parents, rather, complainant herself

stated that when she asked for maintenance from her husband,

petitioner told her that she had not brought anything from her house.

Complainant has also stated that since her parents were poor, she had

not brought anything. But definitely, she stated nothing with regard to

demand of dowry made by the petitioner or family members of the

accused. Similarly, there is nothing in the statement of the

complainant as well as other material prosecution witnesses suggestive

of the fact that conduct, if any, of the petitioner caused stress, if any,

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to the complainant, which could drive the complainant to either to

commit suicide or cause grave injury.

.

14. Interestingly, apart from above, there is no explanation

worth the name on record that what prevented the complainant from

making complaint either to the police or Gram Panchayat from August,

2004 to 9.4.2005, which inaction on the part of the complainant

certainly compels this Court to draw an adverse inference against the

complainant, who, admittedly, kept mum for approximately for nine

months. If she was actually maltreated or meted cruelty, strictly in

terms of explanations (a) and (b) to Section 498A IPC, she would have

lodged complaint with the Gram Panchayat or to the police immediately

in the month of August, 2004 but, neither complainant nor her family

members with whom she admittedly started living in August, 2004,

bothered to lodge complaint against petitioner as well as his family

members.

15. In the instant case, this Court was unable to lay its hand

on any evidence, be it ocular or documentary, suggestive of the fact

that petitioner had ever proclaimed publically or teased the

complainant that she was not his legally wedded wife and similarly,

this Court was unable to see any evidence on record that the petitioner

ever proclaimed publically that he was not the father of the child born

to the complainant. Careful perusal of complaint submitted by the

complainant to the police praying therein for initiating action against

petitioner and his family members, under Section 498-A IPC, also

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nowhere discloses aforesaid allegations, as such, it is not understood

how the first appellate Court came to the conclusion that denial of

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marriage as well as pregnancy of complainant amounts to ‘cruelty’

punishable under Section 498A IPC. At the cost of repetition, it may be

stated that there is/was no allegation as such, made by the

complainant rather, allegations, if any, were of misbehaviour by the

petitioner and his family members. Though complainant made an

attempt to state before police that she was given repeated beatings but,

unfortunately, there is no evidence available on record to support the

contention, if any, with regard to beatings.

16. This Court, after carefully examining the record is of the

view that the petitioner solely with a view to defend himself in the

proceedings under Section 498A IPC, initiated at the behest of the

complainant, took the defence, whereby he claimed that complainant

was not his legally wedded wife but, certainly, aforesaid defence taken

by the petitioner before the court below in the proceedings under

Section 498A IPC nowhere amounts to ‘cruelty’, as defined under

Section 498A IPC. Had the complainant alleged in the complaint and

stated before the Court that petitioner proclaimed publically that the

complainant was not his legally wedded wife and had the petitioner

disputed paternity of the child born to the complainant, Courts below

would have been right in concluding that complainant successfully

proved ‘cruelty’ in terms of Section 498-A IPC.

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17. Further, there are no specific allegations against petitioner

and all the allegations, if any, are/were against the whole of the family,

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that too general and vague. Hence, once the courts below acquitted

other accused on same set of evidence, conviction of petitioner is also

not sustainable.

18. Their lordships of 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 pararmeters 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.

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

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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

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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.”

19. 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.”

20. 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

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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.”

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

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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
r 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………..

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

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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 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
r whether the mental cruelty was established or not.”

21. 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-
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 :-

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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.”

22. A 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:

(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

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(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”.”

23. After bestowing my thoughtful consideration to the

pleadings as well as evidence available on record, I have no hesitation

to conclude that both the learned Courts below have erred in holding

petitioner guilty of having committed offence punishable under Section

498A IPC, especially when there is/was no evidence adduced on record

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by the prosecution specifically proving cruelty in terms of Section 498A

IPC.

.

24. 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 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
r 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

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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 Lord Denning said in
Sheldon v. Sheldon, [1966] 2 All E.R. 257 (259) “the
r 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.”

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

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

enumerated some instances of human behaviour, which may be

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

“98. 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.

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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 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

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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 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.

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(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
r 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.

(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.

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26. 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
r 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.”

27. 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,

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it ma be just an attitude or an approach. Silence in some
situations may amount to cruelty.

20. 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.”

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

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– 27 –

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.”

28. Consequently, in view of the aforesaid discussion, the

impugned judgments of conviction recorded by the Courts below are set

aside. Petitioner is acquitted of offence under Section 498A IPC. Bail

bonds, if any, furnished by the petitioner are discharged. Fine amount,

if any, deposited by the petitioner is also ordered to be refunded to him.

Pending applications, if any, are disposed of.

(Sandeep Sharma)

Judge
April 11, 2017
(Vikrant)

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