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 reporting? 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?

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 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 323of 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 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.
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 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 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 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 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 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 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.

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.”

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 underSection 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 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………..

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-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:

(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 Reddireported 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 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 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 Ghoshreported 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 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 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.

(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 Kumarreported 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.”

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.

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.”

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 498AIPC. 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.

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 498AIPC. 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 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 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 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)