Category Archives: accquittal in 498a

No 498a based on hearsay evidence. Husband acquitted by Supreme court even after wife’s death

No 498a conviction based on hearsay evidence as the exceptions to Sec 32 Indian Evidence act are NOT acceptable for trying cases / crimes under ipc 498a. Also prosecution has failed to prove case beyond reasonable doubt. Hence Husband acquitted even after wife committed suicide.

///It follows, therefore, that there was no legal evidence tendered in the case which could be made the basis for returning a finding with respect to the alleged cruelty of the accused with the deceased. In the absence of any legal evidence produced in the case, we are of the opinion that the prosecution has failed to prove, beyond doubt, that the appellant had committed the offence under Section 498A of the Indian Penal Code and find that it is a fit case where he is entitled to be given the benefit of doubt.

In view of our finding that there is no legal evidence to connect the accused with the commission of the offence under Section 498A of the Indian Penal Code, this appeal is allowed by setting aside the impugned judgment of the High Court as also of trial court. Giving him the benefit of doubt, the appellant is acquitted of the charge under Section 498A of the Indian Penal Code. His bail bond stands discharged.
/////

Supreme Court of India

Gananath Pattnaik vs State Of Orissa on 6 February, 2002

Author: Sethi

Bench: R.P. Sethi, Bisheshwar Prasad Singh

CASE NO.: Appeal (crl.) 1 of 1995


PETITIONER: GANANATH PATTNAIK

Vs.

RESPONDENT: STATE OF ORISSA

DATE OF JUDGMENT: 06/02/2002

BENCH: R.P. Sethi & Bisheshwar Prasad Singh


JUDGMENT:

SETHI,J.

The appellant was charged for the commission of offences punishable under Sections 304B and 498A of the Indian Penal Code for allegedly subjecting his wife to cruelty and causing the dowry death. After trial, the appellant was acquitted of the charge framed against him under Section 304B but convicted under Section 498A of the Indian Penal Code and sentenced to three years rigorous imprisonment. The appeal filed by the appellant against his conviction and sentence under Section 498A IPC was dismissed vide the judgment impugned in this appeal.

The facts of the case are that the appellant’s marriage with Rashmirekha was solemnised on 4.3.1984. A male child was born to the parties on 9.5.1985. Rashmirekha, the wife of the appellant died by hanging herself in the bathroom regarding which the appellant is stated to have lodged a written report to the Police Station Sahid Nagar and he informed the family members of the deceased. PW1, the father of the deceased thereafter lodged an FIR alleging therein that his daughter was murdered by the appellant and his family members. During the investigation it transpired that the deceased had committed suicide on account of dowry demands, allegedly made by the appellant and his family members. It was further revealed that the deceased had been subjected to ill-treatment, harassment and cruelty. The appellant was alleged to be having illicit connection with his brother’s wife. The accused totally denied the occurrence. In his statement, recorded under Section 313 of the Code of Criminal Procedure, he admitted that the deceased was his wife but asserted that he was having very cordial relations with her. There was no demand of dowry either by him or his brother or his family members. According to him the deceased had committed suicide which is not related to either cruelty or harassment or demand of dowry.

Upon analysis of the prosecution evidence, the trial court concluded that, “in absence of any acceptable evidence to establish the foundational fact, the accused cannot be held guilty for the offence under Section 304B of IPC”. The trial court, however, found the appellant guilty for the offence under Section 498A IPC by finding: “In this case there is evidence that the accused has given purshes to the deceased in presence of PW4. He has taken away the child from her as stated by PW5. There is also evidence that the deceased was not allowed to sit on the scooter by the accused and he was frequently staying absent in the house. He also failed to explain his position in relation to his sister-in-law Bijayalaxmi to the deceased for which there was an impression that he had illicit relationship with Bijayalaxmi. I find the evidence of the witnesses on this score is consistent. Taking away the child and the further ill treatment of the accused to the deceased as indicated above amounts to cruelty in as much as by the said conduct of the accused, it could be much possible that the deceased Rasmirekha could be driven to commit suicide.”

The aforesaid findings were confirmed by the High Court vide the order impugned.

It is conceded before us that no appeal or revision has been filed against the judgment of the trial court by which the appellant was acquitted of the charge framed against him under Section 304B of the Indian Penal Code.

We do not agree with the argument of the learned counsel for the appellant that even on proof of the aforesaid circumstances, as noticed by the trial court, no case was made out against the appellant as, according to him, those facts even proved do not constitute cruelty for the purposes of attracting the provisions of Section 498A of the Indian Penal Code. Cruelty for the purposes of aforesaid section has been defined under the Explanation of the Section to mean:

“(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 here 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.”

The concept of cruelty and its effect varies from individual to individual also depending upon the social and economic status to which such person belongs. “Cruelty” for the purposes of constituting the offence under the aforesaid section need not be physical. Even mental torture or abnormal behaviour may amount to cruelty and harassment in a given case.

Learned counsel for the appellant then submitted that the findings returned by the trial court regarding the cruelty within the meaning of Section 498A of the Indian Penal Code are not based on any legal evidence.

To hold that the accused had once given pushes to the deceased which drove her to commit suicide are based upon the alleged testimony of PW4 who is the mother of the deceased. We have minutely read the statement of the aforesaid witness and do not find any mention of her having seen the accused pushing the deceased which, in turn, could be held to be “cruelty” driving her to commit suicide.

Another circumstance of cruelty is with respect to taking away of the child from the deceased. To arrive at such a conclusion, the trial court has referred to the statement of PW5, who is the sister of the deceased. In her deposition recorded in the court on 4.5.1990 PW5 had stated:

“Whenever I had gone to my sister, all the times she was complaining that she is not well treated by her husband and in-laws for non-fulfilment of balance dowry amount of scooter and twin one.”

and added:

“On 3.6.1987 for the last time I had been to the house of the deceased i.e. to her separate residence. Sworna, Snigdha, Sima apa, Baby Apa accompanied me to her house on that day. At that time the deceased complained before us as usual and added to that she said that she is being assaulted by the accused now-a-days. She further complained before us that the accused is taking away the child from and her, and that her mother in-law has come and some conspiracy is going against her (the deceased). She further told that “MATE AU BANCHEI DEBENAHIN”.

Such a statement appears to have been taken on record with the aid of Section 32 of the Indian Evidence Act at a time when the appellant was being tried for the offence under Section 304B and such statement was admissible under Clause (1) of the said section as it related to the cause of death of the deceased and the circumstances of the transaction which resulted in her death. Such a statement is not admissible in evidence for the offence punishable under Section 498A of the Indian Penal Code and has to be termed as being only a hearsay evidence. Section 32 is an exception to the Hearsay Rule and deals with the statements or declarations by a person, since dead, relating to the cause of his or her death or the circumstances leading to such death. If a statement which otherwise is covered by the Hearsay Rule does not fall within the exceptions of Section 32 of the Evidence Act, the same cannot be relied upon for finding the guilt of the accused.

Another finding for recording the guilt of the accused is that once the deceased was not allowed to sit on the scooter by the accused and that he was frequently staying absent from his house. Learned counsel, appearing for the respondent, fairly conceded that no witness has stated to that effect and we feel that such a finding is not based upon any legal evidence.

The alleged relationship of the appellant with his sister-in-law is stated to be another circumstance which led the deceased to commit the suicide. Again there is no evidence on the record to hold that the deceased had conceived the apprehension of the appellant having illicit relations with his sister-in-law which led her to end the life. Learned counsel for the appellant has taken us through letters Exhibit A to F, stated to have been written by the deceased as admitted by PW4. In one of the letters the deceased is shown to have written to her mother stating:

Please informed me when the result of Tutu shall be declared and also send the new address of Bada Bhai in the letter have told you have occasion not to spread bad rumour against the sister-in-law (wife of Kailash Patnaik) and not to discuss about her with anybody; can these discussions will at all lead to a better understanding, rather it will create more misunderstanding and aggravating the situation and which is already in vogue. I came to know that you are telling to others that she is not providing me proper food, allowing me to wear good cloth and giving ill-treatment. I want to know who has given you these false information about her and as I remember, have never discuss about this to you; it is wrong to presume that she is misbehaving me; but you have been getting wrong information about her from others. When it comes her knowledge that that you have made discussion against her it creates rift and misunderstanding in our family; further I would like to bring your notice this is to report to her by those you discuss about her. Further why are you discussing with others regarding my stay; whether it is at village-home or at Bhubaneshwar. I have made number of fervent appeals to you not to make any bad discussion against her but you are not heeding to my advise and continuing same against her. By doing this, you are isolating me from rest of the family members.”

(EMPHASIS SUPPLIED) In view of the aforesaid letter it could not be held that the deceased had conceived an apprehension about the relationship of the appellant with his sister-in-law.

It follows, therefore, that there was no legal evidence tendered in the case which could be made the basis for returning a finding with respect to the alleged cruelty of the accused with the deceased. In the absence of any legal evidence produced in the case, we are of the opinion that the prosecution has failed to prove, beyond doubt, that the appellant had committed the offence under Section 498A of the Indian Penal Code and find that it is a fit case where he is entitled to be given the benefit of doubt.

In view of our finding that there is no legal evidence to connect the accused with the commission of the offence under Section 498A of the Indian Penal Code, this appeal is allowed by setting aside the impugned judgment of the High Court as also of trial court. Giving him the benefit of doubt, the appellant is acquitted of the charge under Section 498A of the Indian Penal Code. His bail bond stands discharged.

……………………….J. (R.P. Sethi)

……………………….J. (Bisheshwar Prasad Singh)

February 6, 2002

#ipc498a
#498a
#section498a
#section-498a
#sec.498a
#section498a #Indian_Penal_Code
#sec498aIPC
#IPC_section498a
#section304b
#s.498a indian penal code
indian penal code 498a
s.498a ipc
498a ipc
#304b
#304b
#hearsay
#illicit
#DowryDeath
#Dowry
#Sec32_EvidenceAct
#Indian_Evidence_Act
#EvidenceAct

*****************

FOLLOW http://twitter.com/ATMwithDick on twitter or https://vinayak.wordpress.com/ on wordpress or http://evinayak.tumblr.com/ FOR 100s of high court and supreme court cases

regards

Vinayak
Father of a lovely daughter, criminal in the eyes of a wife, son of an compassionate elderly mother, old timer who hasn’t given up, Male, activist

Extra marital by husband NOT cruelty under 498a. Convictions under 306, 498a set aside by Supreme court

Extra marital by husband NOT cruelty under 498a. Convictions under 306, 498a set aside by Supreme court

In this classic but sad case a wife commits suicide suspecting that her husband is having an extra marital affair Unable to bear the stigma, the woman accused as his paramour commits suicide. That woman’s mother and brother too commit suicide ! The man gets charged under sec 306 and Sec 498a of IPC. The Hon Supreme court sets aside both convictions and states “... The concept of mental cruelty depends upon the milieu and the strata from which the persons come from and definitely has an individualistic perception regard being had to one’s endurance and sensitivity. It is difficult to generalize but certainly it can be appreciated in a set of established facts. Extra-marital relationship, per se, or as such would not come within the ambit of Section 498-A IPC. It would be an illegal or immoral act, but other ingredients are to be brought home so that it would constitute a criminal offence. There is no denial of the fact that the cruelty need not be physical but a mental torture or abnormal behaviour that amounts to cruelty or harassment in a given case. It will depend upon the facts of the said case. To explicate, solely because the husband is involved in an extra-marital relationship and there is some suspicion in the mind of wife, that cannot be regarded as mental cruelty which would attract mental cruelty for satisfying the ingredients of Section 306 IPC…..” . “..Consequently, the appeals are allowed. The conviction under Sections 306 and 498-A of the IPC is set aside. …..”

===========================================

REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE  JURISDICTION

CRIMINAL APPEAL  NO(S).   1138-1139        OF 2016
(@ S.L.P. (Crl) Nos.  5928-5929 OF 2016)

K.V. Prakash Babu                                  …     Appellant

VERSUS

State of Karnataka                                 …     Respondent

J U D G M E N T

Dipak Misra, J.

  1. Leave granted.
  2. The instant appeals reveal a factual score that has the potentiality to shock a sensitive mind and a sincere heart, for the materials brought on record show how “suspicion” can corrode the rational perception of value of life and cloud the thought of a wife to such an extent, that would persuade her to commit suicide which entail more deaths, that is, of the alleged paramour, her mother and brother who being not able to emotionally cope up with the social humiliation, extinguish their life-spark; and ultimately the situation ropes in the husband to face the charge for the offences punishable under Sections 302 and 498-A of the Indian Penal Code (IPC) read with Section 3 of the Dowry Prohibition Act, 1961 (‘1961 Act’ for short). As the facts would unveil, the husband gets acquitted for the offence under Section 302 IPC but convicted in respect of other two charges by the trial court. In appeal, his conviction under Section 3 of the 1961 Act is annulled but success does not come in his way as regards the offence under Section 498-A IPC. And the misery does not end there since in the appeal preferred by the State, he is found guilty of the offence under Section 306 IPC and sentenced to suffer four years rigorous imprisonment and to pay a fine of Rs.50,000/- to be given to the father of the victim with a default clause.
  3. In the course of our adumbration and analysis of facts, it will be uncurtained how the seed of suspicion grows enormously and the rumours can bring social dishonor and constrain not-so-thick skinned people who have bound themselves to limitless sorrow by thinking ‘it is best gift of God to man” and choose to walk on the path of deliberate death. A sad incident, and a shocking narrative, but we must say, even at the beginning, the appellant-husband has to be acquitted regard being had to the evidence brought on record and the exposition of law in the field.
  4. The singular issue, as the aforesaid passage would show, that arises for consideration in these appeals, by special leave, that assails the judgment and order dated 13.04.2016 passed by the High Court of Karnataka at Bengaluru in Criminal Appeal No. 655 of 2012 whereby the High Court has allowed the appeal preferred by the State which had called in question the legal acceptability of the judgment and order passed by the learned Additional Sessions Judge, Fast Track Court-III, District Kolar, Karnataka, who vide judgment dated 5.1.2012 had found the appellant guilty of the offences punishable under Section 498-A of the IPC and Section 3 of the 1961 Act and sentenced him to suffer rigorous imprisonment of one year and two years respectively with the default clause. It is apt to note here that the appellant had also preferred Criminal Appeal No. 126 of 2012 wherein the High Court while passing the common judgment has opined that the prosecution has miserably failed to establish the conviction under the 1961 Act. However, as stated earlier, it found the appellant guilty of the offence under Section 306 IPC and the result of such conviction was imposition of four years rigorous imprisonment and fine of Rs. 50,000/- (Rupees fifty thousand only) with the further stipulation that Rs.45,000/- (Rupees forty five thousand only) be paid to the father of the deceased. http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; https://twitter.com/ATMwithDick
  5. The occurrence that led to launching of prosecution is that the marriage between the appellant and the deceased, Anjanamma, was solemenised on 12.10.1997. The appellant, as alleged, got involved with one Deepa, daughter of one Ashwathamma inasmuch as his visit to the house of Ashwathamma was quite frequent. As the prosecution story proceeds, the deceased felt extremely hurt and eventually being unable to withstand the conduct of the husband who was allegedly involved in an extra-marital affair, put an end to her life on 20th August, 2004. An FIR was lodged at the concerned police station by the father of the deceased, which set the criminal law in motion and the investigating officer recorded statement of witnesses under Section 161 of the IPC and after completing the investigation, placed the charge sheet under Sections 201, 302 and 498-A of the IPC and Section 3 of the 1961 Act before the concerned Magistrate who, in turn, committed the matter to the Court of Session. The accused abjured his guilt and expressed his intention to face trial, advancing the plea of denial and false implication. In order to establish the charges, the prosecution examined 31 witnesses in all. The defence chose not to adduce any evidence. The main witnesses are father of the deceased, PW-1 and the neighbours who have deposed about the extra- marital affair of the husband and the death of the deceased.
  6. As we have already stated about the conviction and the punishment, the same need not be stated in detail. There is no dispute that the learned trial judge as well as the High Court has not found the appellant guilty of the offence punishable under Section 302 of the IPC. The High Court has also arrived at the conclusion after detailed deliberation that the prosecution has not been able to establish the offence under Section 3 of the 1961 Act. However, it has found the appellant guilty of the offence under Sections 498-A and 306 of the IPC.
  7. It is submitted by Mr. S.R. Singh, learned senior counsel that the High Court has completely erred in appreciating the evidence to sustain the conviction under Section 498-A inasmuch as there is no material whatsoever with regard to demand of dowry or any kind of torture. According to Mr. Singh, the High Court has applied the second limb of Section 498-A IPC on the foundation that the involvement of the husband in extra-marital affair established cruelty under the said provision and, therefore, it would be an offence under Section 306 of the IPC which is contrary to the pronouncements of this Court.
  8. Mr. V.N. Raghupathy, learned counsel appearing for the State had supported the judgment and order passed by the High Court by placing reliance on the analysis of the various facets and the scrutiny and scanning of the evidence of the prosecution witnesses including that of the father, the neighbours and the investigating officer.
  9. To appreciate the submissions raised at the Bar, we have bestowed our anxious consideration and carefully examined the decision rendered by the trial court and that of the High Court. On a studied scrutiny of the evidence, it is demonstratable that the father of the deceased in his deposition has not stated anything with regard to any kind of cruelty meted out to the deceased except stating that she quite often complained to the parents about the visit of the appellant to the house of Ashwathamma and that she had suspicion against her husband that he was going to have a second marriage. The other witnesses including the investigating officer have deposed that there was discussion in the locality about the illicit connection of the appellant with one lady at Chelur Village. Barring the aforesaid, there is no whisper with regard to any kind of ill-treatment or cruel behaviour by the husband.
  10. In view of the aforesaid evidence, the question that emerges for consideration is whether the conviction under Section 498A and 306 IPC is legally justiciable in this context. We think it appropriate to refer to Section 498A of the IPC. The said provision reads as follows:-
    • 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, 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 willful 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”
  11. The said provision came up for consideration in Giridhar Shankar Tawade vs. State of Maharashtra[1], where the Court dwelling upon the scope and purport of Section 498-A IPC has held thus:- “The basic purport of the statutory provision is to avoid ‘cruelty’ which stands defined by attributing a specific statutory meaning attached thereto as noticed herein before. Two specific instances have been taken note of in order to ascribe a meaning to the word ‘cruelty’ as is expressed by the legislatures : Whereas explanation (a) involves three specific situations viz., (i) to drive the woman to commit suicide or (ii) to cause grave injury or (iii) danger to life, limb or health, both mental and physical, and thus involving a physical torture or atrocity, in explanation (b) there is absence of physical injury but the legislature thought it fit to include only coercive harassment which obviously as the legislative intent expressed is equally heinous to match the physical injury : whereas one is patent, the other one is latent but equally serious in terms of the provisions of the statute since the same would also embrance the attributes of ‘cruelty’ in terms of Section 498-A.” [emphasis added]
  12. In Gurnaib Singh v. State of Punjab[2], while dwelling upon the concept of ‘cruelty’ enshrined under Section 498-A the Court has opined thus:-“Clause (a) of the Explanation to the aforesaid provision defines “cruelty” to mean “any wilful conduct which is of such a nature as is likely to drive the woman to commit suicide”. Clause (b) of the Explanation pertains to unlawful demand. Clause (a) can take in its ambit mental cruelty.”
  13. The aforesaid analysis of the provision clearly spells how coercive harassment can have the attributes of cruelty that would meet the criterion as conceived of under Section 498-A of the IPC. Thus, the emphasis is on any wilful conduct which is of such a nature that is likely to drive the woman to commit suicide. The mental cruelty which is engraved in the first limb of Section 498-A of the IPC has nothing to do with the demand of dowry. It is associated with mental cruelty that can drive a woman to commit suicide and dependent upon the conduct of the person concerned.
  14. In this regard, Mr. Singh has drawn our attention to the authority in Pinakin Mahipatray Rawal v. State of Gujarat[3]. In the said case, the Court was dealing with as to whether relationship between the appellant and the second accused therein was extra-marital leading to cruelty within the meaning of Section 498-A IPC and whether that would amount to abetment leading to the act of suicide within the meaning of Section 306 IPC. Dealing with the extra-marital relationship, the Court has opined that marital relationship means the legally protected marital interest of one spouse to another which include marital obligation to another like companionship, living under the same roof, sexual relation and the exclusive enjoyment of them, to have children, their up-bringing, services in the home, support, affection, love, liking and so on, but extra-marital relationship as such is not defined in the IPC. The Court analyzing further in the context of Section 498A observed that the mere fact that the husband has developed some intimacy with another woman, during the subsistence of marriage and failed to discharge his marital obligations, as such would not amount to “cruelty”, but it must be of such a nature as is likely to drive the spouse to commit suicide to fall within the explanation to Section 498A IPC. The Court further elucidated that harassment 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. The Court ruled that in the facts of the said case the alleged extra-marital relationship was not of such a nature as to drive the wife to commit suicide. The two-Judge Bench further opined that:- “Section 306 refers to abetment of suicide which says that if any person commits suicide, whoever abets the commission of such suicide, shall be punished with imprisonment for a term which may extend to 10 years and shall also be liable to fine. The action for committing suicide is also on account of mental disturbance caused by mental and physical cruelty. To constitute an offence under Section 306, the prosecution has to establish that a person has committed suicide and the suicide was abetted by the accused. The Prosecution has to establish beyond reasonable doubt that the deceased committed suicide and the accused abetted the commission of suicide. But for the alleged extra marital relationship, which if proved, could be illegal and immoral, nothing has been brought out by the prosecution to show that the accused had provoked, incited or induced the wife to commit suicide.” [emphasis added]
  15. Slightly recently in Ghusabhai Raisangbhai Chorasiya v. State of Gujarat[4], the Court perusing the material on record opined that even if the illicit relationship is proven, unless some other acceptable evidence is brought on record to establish such high degree of mental cruelty the explanation (a) to Section 498-A of the IPC which includes cruelty to drive the woman to commit suicide, would not be attracted. The relevant passage from the said authority is reproduced below:- “True it is, there is some evidence about the illicit relationship and even if the same is proven, we are of the considered opinion that cruelty, as envisaged under the first limb of Section 498A IPC would not get attracted. It would be difficult to hold that the mental cruelty was of such a degree that it would drive the wife to commit suicide. Mere extra-marital relationship, even if proved, would be illegal and immoral, as has been said in Pinakin Mahipatray Rawal (supra), but it would take a different character if the prosecution brings some evidence on record to show that the accused had conducted in such a manner to drive the wife to commit suicide. In the instant case, the accused may have been involved in an illicit relationship with the appellant no.4, but in the absence of some other acceptable evidence on record that can establish such high degree of mental cruelty, the Explanation to Section 498-A which includes cruelty to drive a woman to commit suicide, would not be attracted.”
  16. The concept of mental cruelty depends upon the milieu and the strata from which the persons come from and definitely has an individualistic perception regard being had to one’s endurance and sensitivity. It is difficult to generalize but certainly it can be appreciated in a set of established facts. Extra-marital relationship, per se, or as such would not come within the ambit of Section 498-A IPC. It would be an illegal or immoral act, but other ingredients are to be brought home so that it would constitute a criminal offence. There is no denial of the fact that the cruelty need not be physical but a mental torture or abnormal behaviour that amounts to cruelty or harassment in a given case. It will depend upon the facts of the said case. To explicate, solely because the husband is involved in an extra-marital relationship and there is some suspicion in the mind of wife, that cannot be regarded as mental cruelty which would attract mental cruelty for satisfying the ingredients of Section 306 IPC. http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; https://twitter.com/ATMwithDick
  17. We are absolutely conscious about the presumption engrafted under Section 113-A of the Evidence Act. The said provision enables the Court to draw presumption in a particular fact situation when necessary ingredients in order to attract the provision are established. In this regard, we may reproduce a passage from Pinakin Mahipatray Rawal (supra):- “Criminal law amendment and the rule of procedure was necessitated so as to meet the social challenge of saving the married woman from being ill- treated or forcing to commit suicide by the husband or his relatives, demanding dowry. Legislative mandate of the section is that when a woman commits suicide within seven years of her marriage and it is shown that her husband or any relative of her husband had subjected her to cruelty as per the terms defined in Section 498-A IPC, the court may presume having regard to all other circumstances of the case that such suicide has been abetted by the husband or such person. Though a presumption could be drawn, the burden of proof of showing that such an offence has been committed by the accused under Section 498-A IPC is on the prosecution.” We have reproduced the aforesaid passage only to highlight that the Court can take aid of the principles of the statutory presumption.
  18. In the instant case, as the evidence would limpidly show, the wife developed a sense of suspicion that her husband was going to the house of Ashwathamma in Village Chelur where he got involved with Deepa, the daughter of Ashwathamma. It has come on record through various witnesses that the people talked in the locality with regard to the involvement of the appellant with Deepa. It needs to be noted that Deepa, being not able to digest the humiliation, committed suicide. The mother and the brother of Deepa paved the same path. In such a situation, it is extremely difficult to hold that the prosecution has established the charge under Section 498A and the fact that the said cruelty induced the wife to commit suicide. It is manifest that the wife was guided by the rumour that aggravated her suspicion which has no boundary. The seed of suspicion planted in mind brought the eventual tragedy. But such an event will not constitute the offence or establish the guilt of the accused-appellant under Section 306 of the IPC.
  19. Having said that we intend to make it clear that if the husband gets involved in an extra-marital affair that may not in all circumstances invite conviction under Section 306 of the IPC but definitely that can be a ground for divorce or other reliefs in a matrimonial dispute under other enactments. And we so clarify.
  20. Consequently, the appeals are allowed. The conviction under Sections 306 and 498-A of the IPC is set aside. The appellant be set at liberty unless his detention is required in connection with any other case.

………………..……………..J. (DIPAK MISRA)

………………..……………..J. (AMITAVA ROY)

New Delhi

November 22, 2016

==============================================

ITEM NO.4              COURT NO.3               SECTION IIC

S U P R E M E  C O U R T  O F  I N D I A

RECORD OF PROCEEDINGS

Petition(s) for Special Leave to Appeal (Crl.) No(s). 5928-5929/2016 (Arising out of impugned final judgment and order dated 13/04/2016 in CRLA No. 126/2012 13/04/2016 in CRLA No. 655/2012 passed by the High Court Of Karnataka At Bangalore) K.V. PRAKASH BABU Petitioner(s) VERSUS STATE OF KARNATAKA Respondent(s) (with appln. (s) for bail and exemption from filing O.T. and office report) Date : 22/11/2016 These petitions were called on for hearing today.

CORAM :

HON’BLE MR. JUSTICE DIPAK MISRA HON’BLE MR. JUSTICE AMITAVA ROY For Petitioner(s) Mr. S.R. Singh, Sr. Adv.

Mr.Anurag Thomas, Adv.

Mr. B. Vishwanath Bhandarkar, Adv.

Mr. H.K. Naik, Adv.

Mr. Karunakar Mahalik,Adv.

For Respondent(s) Mr. V. N. Raghupathy,Adv.

UPON hearing the counsel the Court made the following O R D E R Leave granted.

Consequently, the appeals are allowed. The conviction under Sections 306 and 498-A of the IPC is set aside. The appellant be set at liberty unless his detention is required in connection with any other case.

|   (NEELAM GULATI)                |          (H.S. PARASHER)          |
|COURT MASTER                      |COURT MASTER                       |

(Signed Reportable Judgment is placed on the file)


[1]
(2002) 5 SCC 177
[2]    (2013) 7 SCC 108
[3]     (2013) 10 SCC 48
[4]     (2015) 11 SCC 753

============================================

*****************************disclaimer**********************************
This judgment and other similar judgments posted on this blog was / were collected from Judis nic in website and / or other websites of Govt. of India or other internet web sites like worldlii or indiankanoon or High court websites. Some notes are made by Vinayak. Should you find the dictum in this judgment or the judgment itself repealed or amended or would like to make improvements or comments, please post a comment on the comment section of the blog and if you are reading this on tumblr please post responses as comments at vinayak.wordpress.com . Vinayak is NOT a lawyer and nothing in this blog and/or site and/or file should be considered as legal advise.


CASE FROM JUDIS / INDIAN KANOON WEB SITE with necessary Emphasis, Re formatting


False 498a endng in acquital is cruelty. No need 2 establsh “malafide”. Divorce granted !! Bombay HC

False 498a that ends in acquittal is cruelty. No special finding by trial court needed to establish malafide intentions or intent to defame ! Divorce granted to husband & Wife’s RCR set aside. Spouses cannot be asked to live together after such cruelty. Bombay HC 

The key question raised in this case is “…. “Whether for the act of filing complaint under Section 498A of Indian Penal Code, to amount to mental cruelty on the acquittal of husband and family, it is essential that judgment of acquittal must find that the complaint filed was false and with an intention to defame ?

I.e. is a false 498a where husband & other accused are acquitted by itself gorunds for claiming cruelty or is there a need for the trial court to state that it was intentionally filed to defame the husband ?

In this case, a newly married wife who lives with her husband for just five days goes out to file false 498a etc. on husband and family. As a result of these false cases, husband and his parents are arrested. Some years later the husband is acquitted in the 498a case, on the grounds that the prosecution did not prove the charge. Husband applies for annulment of marriage , wife applies for restitution. At lower courts and first appeal wife wins RCR. Husband approaches HC on appeal (for divorce). Wife & co contend that the lower court acquitted the husband in 498A etc as the prosecution did not prove the case, and the learned MM did not claim that it was false case (in his order). So wife argues that it was not cruelty.

However Bombay HC rightly appreciates the facts and decrees that a 498a that ends in acquittal of the accused husband and his people is cruelty and enough to grant him divorce. The case need NOT be decreed as false !

Key notes 

*********

* Marriage solemnised On or about 16th June, 2002

* Wife claims that on 21st June or thereabouts she and her sister were forced out of the matrimonial home

* VERY soon she starts her 498a ” On 12th August, 2002, an FIR came to be lodged by the respondent under sections 498A, 323, 504 and 506 of the Indian Penal Code against the appellant, his father, mother and brother. The appellant and his family members were arrested by the police pursuant to such complaint by the respondent.…”

On 21st December, 2002, the respondent (wife) filed a petition under section 9 of the Hindu Marriage Act for restitution of conjugal rights. On 5th September, 2005, the appellant (husband), his family members were acquitted in the Regular Criminal Case No.378 of 2002. The said order passed in the Regular Criminal Case No.378 of 2002 was not challenged.

* Husband files for annulment of marriage. “…5. On 10th March, 2006, the appellant herein filed a Hindu Marriage Petition (49 of 2006) against the respondent in the Court of learned Civil Judge Senior Division, Sangli inter-alia praying for annulment of marriage and for divorce.* The learned civil judge dismisses husband’s petition and allows wifes RCR. Husband goes on appeal to the district judge who confirms the order of the civil judge. So husband goes on appeal to the high court

* The HC accepts the appeal and frames the important question.“Whether for the act of filing complaint under Section 498A of Indian Penal Code, to amount to mental cruelty on the acquittal of husband and family, it is essential that judgment of acquittal must find that the complaint filed was false and with an intention to defame ? “

* the counsel for the wife argues that “…there was no finding rendered in the order passed by the Criminal Court that the complaint against the appellant and his family members was false and was filed with an intention to defame the appellant and his family members. He submits that there was no finding rendered by the learned trial judge on the offence under section 498A of the Indian Penal Code. There was no cross examination of the respondent on the issue that the said complaint made by the respondent was false or was filed with an intention to defame the appellant and his family members..…”

* the counsel for the wife further argues that “…15. …even if the respondent had committed any cruelty upon the appellant, the respondent was entitled to maintain petition for restitution of conjugal rights independently. He submits that even if this Court comes to the conclusion that any cruelty was committed by the respondent upon the appellant, this Court cannot set aside the orders passed by the two Courts below insofar as the reliefs of restitution of conjugal rights under section 9 of the Hindu Marriage Act has been granted in favor of the respondent is concerned..”

* the Hon HC notices and appreciates the fact that the trial court had “….It is held that the said deposition in the cross- examination for the first time about the alleged demand of dowry was an after thought. No incident had occurred from 16th June, 2002 to 21st June, 2002. It is held that it appeared to be improbable that on 21st June, 2002 after Pooja was performed, she was suddenly and forcibly asked to leave the matrimonial home.….” and the trial court had also noticed and mentioned that “…..25. It is held that the case of the respondent was not believable in view of the appellant and his family members giving gifts to the relatives of the respondent and in view of the delay on her part in lodging a complaint against the appellant and his family members…..”

* The Hon HC notices the fact that “…29. The Criminal Court while acquitting the appellant and his family members, after considering the evidence of six witnesses had rendered a positive finding that the complaint filed by the respondent was an after thought. …”

* After referring to a catena of HC and SC decisions the Hon HC concludes that “…In my opinion, filing of such complaint itself which create mental trauma on the husband and the complaint which was seriously prosecuted by the wife by leading evidence of several persons and bringing the said complaint to its logical conclusion which ultimately resulted in acquittal of the husband and his family members clearly amounted to the cruelty committed by the wife upon the husband.…”

* So the HON HC sets aside the RCR order in favour of the wife and decrees divorce in favour of the husband on frounds of cruelty !!

***********************************************************

             IN THE HIGH COURT OF JUDICATURE AT BOMBAY

                      CIVIL APPELLATE JURISDICTION

                          SECOND APPEAL NO. 396 OF 2013

                                    WITH

                         SECOND APPEAL NO. 397 OF 2013

 

      Anil Yashwant Karande,                     )
age about 46, resident of Market           )
Committee Karmachari Low Income            )
Group Co-operative Housing Society         )
Plot No.34, Ekata Colony, Sangli.          )          …Appellant
ig                     …(Orig.Plff.)

Versus…
      Smt. Mangal Anil Karande,                  )
age about 42, Occ : Service,               )
C/o. Smt.Kalika Datta Chormule,            )
Dongri Chawl, Limaye Wadi,                 )
Solapur.                                   )          …Respondent
…(Orig.Opp.)

Mr.S.G. Deshmukh i/b Mr.Abhijeet Khandarkar for the Appellant.
Mr.Ashok Tajane with Ms.Manali Patil for the Respondent.

 

 CORAM        : R.D. DHANUKA, J.
RESERVED ON : 5th DECEMBER, 2015
PRONOUNCED ON : 23RD DECEMBER, 2015
 JUDGMENT :-

  1. By these two second appeals, the appellant has impugned the order passed by the Lower Appellate Bench granting reliefs in favour of the respondent in two separate civil appeals filed by the respondent.
  1. On or about 16th June, 2002 the marriage was performed between the appellant and the respondent as per Hindu Rites and Rituals. Pooja was organized after marriage on 21 st June, 2002. It was alleged by the respondent that the respondent was forced to leave the matrimonial house along with her sisters by the appellant. It was the case of the respondent that on 30 th June, 2002, the respondent and her relatives visited the house of the appellant when they were abused and the respondent was driven out of the matrimonial house.
  1. On 12th August, 2002, an FIR came to be lodged by the respondent under sections 498A, 323, 504 and 506 of the Indian Penal Code against the appellant, his father, mother and brother. The appellant and his family members were arrested by the police pursuant to such complaint by the respondent. Pursuant to the said FIR, a Regular Criminal Case No.378 of 2002 was initiated against the appellant and his family members in the Court of IVth Joint Judicial Magistrate, First Class, Sangli.
  1. On 21st December, 2002, the respondent filed a petition under section 9 of the Hindu Marriage Act for restitution of conjugal rights. On 5th September, 2005, the appellant, his family members were acquitted in the Regular Criminal Case No.378 of 2002. The said order passed in the Regular Criminal Case No.378 of 2002 was not challenged.
  1. On 10th March, 2006, the appellant herein filed a Hindu Marriage Petition (49 of 2006) against the respondent in the Court of learned Civil Judge Senior Division, Sangli inter-alia praying for annulment of marriage and for divorce. The said marriage petition   was filed on various grounds including ground of cruelty alleged to have been committed by the respondent. The said Hindu Marriage Petition was resisted by the respondent. Both the proceedings were heard together and were disposed of by a common order. On 29 th February, 2008, the learned Civil Judge Senior Division, Sangli allowed the said Hindu Marriage Petition filed by the respondent under section 9 of the Hindu Marriage Act for restitution of conjugal rights and rejected the Hindu Marriage Petition filed by the appellant inter-alia praying for annulment of the marriage and for divorce against the respondent. Being aggrieved by the said judgment and order dated 29th February, 2008, the appellant herein filed two regular appeals before the learned District Judge, Sangli. By a common judgment and decree dated 18th January, 2012, the learned District Judge dismissed both the regular civil appeals filed by the appellant.
  1. On 17th February, 2015, this Court admitted Second Appeal No.396 of 2013 and formulated following substantial questions of law :-

“Whether for the act of filing complaint under Section 498A of Indian Penal Code, to amount to mental cruelty on the acquittal of husband and family, it is essential that judgment of acquittal must find that the complaint filed was false and with an intention to defame ? “

  1. In so far as Second Appeal No.397 of 2013 is concerned, while admitting the said second appeal, this Court formulated following substantial question of law:-

“Whether for the act of filing complaint under Section 498A of Indian Penal Code, to amount to mental cruelty on the acquittal of husband and family, it is essential that judgment of acquittal must find that the complaint filed was false and with an intention to defame ? “

  1. Mr.Deshmukh, learned counsel for the appellant invited my attention to the order passed by IVth Joint Judicial Magistrate, First Class, Sangli in Regular Criminal Case No.378 of 2002 filed by the State of Maharashtra against the appellant and his family members alleging offences punishable under sections 498A, 323, 504 and 506 of Indian Penal Code on 5th September, 2005. He submits that in the said proceedings, various witnesses were examined including the respondent herself by the prosecution. It is submitted that after considering the oral evidence and the documentary evidence, the learned IVth Joint Judicial Magistrate, First Class, Sangli held that the prosecution had failed to prove that the appellant and his family members herein in furtherance of their common intention subjected the complainant to cruelty by demanding dowry or had voluntarily caused hurt to the complainant or had intentionally insulted the complainant with intent to make her breach of public peace. Learned Joint Judicial Magistrate, First Class, Sangli also rendered a finding that the prosecution had failed to prove that the appellant and his family members in furtherance of their common intention criminally intimidated the complainant by threats of injury to her person. He submits that by the said order, the appellant and his family members were acquitted of offences punishable under sections 498A, 323, 504 and 506 of Indian Penal Code. The said order was not challenged by the State and has attained finality.

 

  1. Learned counsel also invited my attention to the order passed by the learned trial judge allowing the application filed by the respondent for restitution of conjugal rights and dismissing the Hindu Marriage Petition filed by the appellant inter-alia praying for annulment of marriage and for divorce. He submits that the   respondent had filed a false complaint against the appellant and his family members due to which the appellant and his family members were arrested and were subsequently acquitted by an order dated 5th September, 2005. The learned IVth Joint Judicial Magistrate, First Class, Sangli has found that the prosecution had failed to prove any offences alleged to have been committed by the appellant and his family members. Such action on the part of the respondent in filing such false and frivolous complaint and getting the appellant and his family members arrested amounted to an act of cruelty by the respondent upon the appellant.  http://evinayak.tumblr.com/

https://vinayak.wordpress.com/ http://fromvinayak.blogspot.com

  1. It is submitted that the Hindu Marriage Petition thus filed by the respondent wife under section 9 of the Hindu Marriage Act for restitution of conjugal rights itself was not maintainable in view of the act of cruelty on the part of the respondent upon the appellant having been proved. He submits that the order passed by the lower appellate Court dismissing the appeal filed by the appellant and upholding the order passed by the learned trial judge is also patently erroneous and contrary to the law laid down by the Supreme Court and this Court in catena of decisions.
  1. Learned counsel appearing for the appellant placed reliance on the judgment of this Court delivered on 6th May, 2010 in case of Nagesh Dhanapp Chilkanti vs. Sau. Manisha Nagesh Chilkanti in Family Court Appeal No.158 of 2008 holding that filing of false criminal cases would amount to cruelty within the meaning of section 13(i)(a) of the Hindu Marriage Act and on that ground the husband was entitled to a decree of divorce. Reliance is also placed by the learned counsel for the appellant on the judgment of Supreme Court in case of K.Srinivas vs. K.Sunita, (2014) 16 SCC 34 and   would submit that filing of a false and frivolous complaint under section 498A itself amounted to cruelty.
  1. It is submitted by the learned counsel for the appellant that in the examination in chief filed by the respondent in the proceedings before the trial Court, there were no allegations of dowry made by the respondent against the appellant and his relatives. Only during the course of cross examination of the respondent, she alleged demand of dowry for the first time alleged to have been made by the appellant and her family members. He submits that the allegation made by the respondent about demand of dowry has been totally disbelieved by the Criminal Court while dismissing the complaint filed by the State of Maharashtra. The prosecution did not challenge the said findings rendered by the learned Joint Judicial Magistrate, First Class, Sangli. Learned counsel for the appellant also placed reliance on the unreported judgment of this Court delivered on 16 th August, 2012 in case of Nitin Ramesh Dhiwar vs. Sou.Roopali Nitin Dhiwar in Family Court Appeal No.118 of 2006 in support of the submission that when the complaint filed under section 498A by the wife is dismissed, the inference can be drawn by the Court that the said complaint was a false complaint and filing of such complaint amounted to cruelty within the meaning of section 13(1)(i-a) of Hindu Marriage Act.
  1. Mr.Tajane, learned counsel appearing for the respondent wife on the other hand relied upon the findings rendered by the two Courts below and would submit that the said findings of fact being not perverse cannot be interfered with by this Court under section 100 of the Code of Civil Procedure, 1908. He invited my attention to the findings rendered more particularly in paragraphs 23 to 25 of the order passed by the learned trial judge and the issues framed in the   said proceedings. He submits that the appellant had already given up grounds of nullity of the marriage before the lower appellate Court.

He submits that the appellant had filed false and frivolous Hindu Marriage Petition inter-alia praying for annulment of the marriage and divorce only after four years of acquittal of the appellant and his family members. He submits that the appellant and his family members have not been acquitted on the ground of false complaint but have been acquitted on the ground that the prosecution had not proved his case.

  1. Insofar as judgments relied upon by the learned counsel for the appellant is concerned, it is submitted by the learned counsel for the respondent that all such judgments relied upon by the appellant have been delivered in the family Court appeal and are distinguishable in the facts of this case. He submits that the judgments delivered under family court appeal cannot be relied upon since in family court appeal, the Court has to consider all the question of facts and law whereas in the second appeal, the Court can interfere only if substantial question of law arises. He submits that in any event the fact in those judgments relied upon by the learned counsel for the appellant are totally different than the facts in this case. He submits that there was no finding rendered in the order passed by the Criminal Court that the complaint against the appellant and his family members was false and was filed with an intention to defame the appellant and his family members. He submits that there was no finding rendered by the learned trial judge on the offence under section 498A of the Indian Penal Code. There was no cross examination of the respondent on the issue that the said complaint made by the respondent was false or was filed with an intention to defame the appellant and his family members.
  1. It is submitted by the learned counsel for the respondent that even if the respondent had committed any cruelty upon the appellant, the respondent was entitled to maintain petition for restitution of conjugal rights independently. He submits that even if this Court comes to the conclusion that any cruelty was committed by the respondent upon the appellant, this Court cannot set aside the orders passed by the two Courts below insofar as the reliefs of restitution of conjugal rights under section 9 of the Hindu Marriage Act has been granted in favor of the respondent is concerned, it is submitted that the said proceedings under section 9 of the Hindu Marriage Act is independent proceedings and did not depend on the outcome of the criminal complaint filed by the respondent against the appellant and his family members.
  1. Mr.Deshmukh, learned counsel for the appellant in rejoinder submits that for the purpose of deciding whether cruelty was committed or not by the respondent upon the appellant, positive findings of the Criminal Court that the complaint filed by her was false and frivolous was not necessary. Since it was found that the prosecution had failed to prove the offence against the appellant and the appellant was acquitted in such complaint, that itself proved the cruelty on the part of the respondent upon the petitioner under section 13(1)(i-a) of the Hindu Marriage Act.
  1. Learned counsel once again invited my attention to various findings rendered by the Criminal Court on this issue. He submits that the appellant had given up his allegation of fraud against the respondent before the lower appellate Court and did not press that allegation.
  1. Insofar as submission of the learned counsel for the respondent that the application for restitution of conjugal rights was independent proceeding and could be considered even if any cruelty was committed by the respondent upon the appellant is concerned, it is submitted that the person who had committed cruelty cannot seek restitution of conjugal rights at the same time.

REASONS & CONCLUSIONS :-

  1. This Court shall first decide whether filing of the complaint under section 498-A of the Indian Penal Code by the wife against the husband amounted to mental cruelty on the acquittal of the husband and his family members or whether any specific finding by the Criminal Court while acquitting the husband and his family members was essential that the complaint filed by the wife was false and was with an intention to defame the husband and his family members.
  1. There is no dispute that the marriage of the appellant (original plaintiff) was performed with the respondent (original opponent) on 16th June, 2002. Since 21st June, 2002 the respondent was alleged to have been forced by the appellant to leave the matrimonial home. It is not in dispute that pursuant to the complaint filed by the respondent, FIR came to be lodged under sections 498-A, 323, 504 and 506 of IPC against the appellant, his father, mother and brother. Pursuant to such FIR, the husband and his family members were arrested by the the police. There is no dispute that by an order and judgment dated 5th September, 2005, the learned IVth Joint J.M.F.C., Sangli has acquitted the appellant and his family members of an offence punishable under sections 498-A, 323, 504 and 506 of   IPC. The said order dated 5th September, 2005 has not been challenged and has attained finality. http://evinayak.tumblr.com/https://vinayak.wordpress.com/http://fromvinayak.blogspot.com
  1. A perusal of the said order dated 5th September, 2005 clearly indicates that the prosecution had examined six witnesses, including the respondent – wife, who was the complainant. The learned IVth Joint J.M.F.C. in the said order dated 5th September, 2005 after considering the evidence of the six witnesses examined by the prosecution has acquitted the appellant and his family members of various offences. Insofar as the evidence of PW-1 is concerned, it is held in the said order that the said witness did not know about the marriage of the appellant with the respondent. The witness (PW-2) also deposed that he did not know about the marriage of the appellant with the respondent. It is held that their testimony was thus of no use to prove the case of the prosecution. Insofar as the witness (PW-4) was concerned, it is held that the said witness had deposed that the complainant herself did not tell him about ill-treatment or harassment meet out to her and thus his testimony did not help the prosecution.
  1. Insofar as the witness (PW-5) is concerned, it is held that the deposition of the said witness was in consonance with the deposition of the complainant about the incident taken place on 21 st June, 2002, who did not depose about any abuse or assault or threat to kill given on 21st June, 2002. Insofar as the witness (PW-6) is concerned, it is held that according to his deposition, he had carried out investigation in C.R. No.164 of 2002.
  1. Insofar as the evidence of the respondent herein (PW-3) is concerned, the learned Magistrate has held that in her cross- examination she admitted that on 21 st June, 2002 while being driven   out of her house, she was told not to come back unless she brought Rs.2.00 lacs and 10 Tollas gold. It is held that no such deposition was made in the examination in chief. There was variation in the cross-examination. It is held that the said deposition in the cross- examination for the first time about the alleged demand of dowry was an after thought. No incident had occurred from 16th June, 2002 to 21st June, 2002. It is held that it appeared to be improbable that on 21st June, 2002 after Pooja was performed, she was suddenly and forcibly asked to leave the matrimonial home.
  1. The respondent herself had admitted that her father-in-law had come to leave her on the bus stand. She further admitted that gifts were given to her sister Kalika and also to her niece Teja after Pooja. The learned Magistrate accordingly held that in this sequence of events the alleged demand of dowry or forcing her out of the matrimonial home appeared to be totally improbable. The FIR was lodged more than one month after the alleged demand of dowry. The learned Magistrate totally disbelieved the explanation given by the respondent about the delay in lodging FIR.
  1. It is held that the case of the respondent was not believable in view of the appellant and his family members giving gifts to the relatives of the respondent and in view of the delay on her part in lodging a complaint against the appellant and his family members. The respondent had not given adequate reasons for the delay of more than one month in filing the FIR. The aforesaid finding of fact recorded by the learned Magistrate thereby acquitting the appellant and his family members of the offence under sections 498-A, 323, 504 and 506 of IPC has attained finality.
  1. A perusal of the order passed by the learned Magistrate and the lower appellate Court indicates that both the Courts have held that the appellant husband had not proved that the respondent had committed any cruelty on him and further held that the respondent was entitled to a decree of restitution of conjugal rights. It is held that the appellant was thus not entitled for a decree of nullity or marriage or in the alternative the relief of divorce on the ground of cruelty. The lower appellate Court held that the husband and his family members had been acquitted on the ground that the prosecution was not able to prove the offence beyond reasonable doubt. It is held that the proof of offence beyond reasonable doubt leading to acquittal is a very different concept from a false case lodged in order to defame anybody.
  1. The lower appellate Court has held that the Criminal Court which was ceased of the matter had no where stated that false complaint had been lodged and specific act of cruelty about the wife had not been pleaded and proved and thus the said ground cannot be canvassed for nullity of marriage or for seeking divorce. The lower appellate Court held that taking into consideration the evidence led by the wife, which was more probable, the wife had proved that her marriage with the appellant was legal and the appellant had deserted her without reasonable ground and thus the wife was entitled to get a decree for restitution of conjugal rights.
  1. Both the parties have relied upon several judgments of the Supreme Court and this Court. The Supreme Court in case of K. Srinivas (supra) has held that it is beyond cavil that if a a false criminal complaint is preferred by either spouse it would invariably and indubitably constitute matrimonial cruelty, such as would entitle   the other spouse to claim a divorce. The Supreme Court in the said judgment held that the respondent wife had admitted in her cross-examination that she did not mention of the incidents on which her complaint was predicated, in her statement under section 161 of Cr.P.C. It was also not her case that she had actually narrated all those facts to the Investigating Officer but he had neglected to mention them. The Supreme Court accordingly held that it was clearly indicative of the fact that the criminal complaint was contrived after thought. The Supreme Court took cognizance of the fact that though the High Court had been informed about the acquittal of the husband and his family members, the High Court had not concluded that complaint of the wife was knowingly and intentionally a false complaint, calculated to embarrass and incarcerate the appellant and seven members of his family. It is held that the High Court ought to have concluded that the said complaint was false complaint and that such conduct of the wife unquestionably constituted cruelty as postulated in section 13(1)(i-a) of the Hindu Marriage Act, 1955.
  1. The Criminal Court while acquitting the appellant and his family members, after considering the evidence of six witnesses had rendered a positive finding that the complaint filed by the respondent was an after thought. The Criminal Court has rejected the complaint on merits after evaluating the evidence of six witnesses. Though the appellant had produced a copy of the said order passed by the learned Magistrate First Class before the lower appellate Court, the lower appellate Court has brushed aside the said judgment by taking a very casual approach in the matter.
  1. The Division Bench of this Court in case of Nagesh Dhanapp Chilkanti vs. Sau.Manisha Nagesh Chilkanti (supra) had   considered a similar case where the husband and his family members were acquitted in the complaint filed under section 498-A of IPC read with other provisions of IPC. The Division Bench of this Court has held that filing of false criminal cases against the husband and his family members would very much constitute mental cruelty. The Division Bench further held that the respondent wife was guilty of treating the husband with utmost mental cruelty by filing false criminal case which ultimately resulted in acquittal and thus the husband was entitled to a decree of divorce o the ground of cruelty.

A perusal of the order passed by the learned Magistrate First Class in the criminal case filed by the prosecution based on the complaint filed by the respondent and more particularly the evidence appreciated by the learned Magistrate First Class indicates that the said complaint has been rejected on merits and not on the ground that the prosecution had failed to prove the case beyond reasonable doubt. In my view, it was thus clear that the said complaint filed by the respondent wife after five days of marriage against the appellant and his family members was a false complaint and was filed as and by way of after thought and with an intention to defame the appellant and his family members. The respondent had not alleged that during those five days there was any ill-treatment or demand of dowry by the appellant or his family members from the respondent or her family   members.

  1. The Division Bench of this Court in case of Nitin Ramesh Dhiwar vs. Sou. Poopali Nitin Dhiwar (supra) has held that filing of a false criminal case itself amounts to cruelty within the meaning of section 13(1)(i-a) of the Hindu Marriage Act, 1955.
  1. The Division Bench of this Court in the judgment reported in 2014(4) B.C.R. 456 has held that in a given case depending upon the evidence on record, even if acquittal is on the ground that the charge could not be substantiated and even if there was no finding recorded by the Criminal Court that the prosecution’s case was false, there can be a case of cruelty. It depends on the manner in which the complaint was filed and prosecuted.
  1. The Supreme Court in case of Vishwanath Sitaram Agrawal vs. Sau.Sarla Vishwanath Agrawal, reported in AIR 2012 SC 2586 has after considering the fact that the wife had filed a complaint under section 498-A of IPC against the husband, her father-in-law and other relatives, who had been acquitted in that case and the said decision of the acquittal had not been assailed before the higher forum, the allegations on that count were incorrect and untruthful and thus it could be unhesitatingly be stated that such an act creates mental trauma in the mind of the husband as no one would like to face a criminal proceeding of this nature on baseless and untruthful allegations.

In this case also the appellant and his family members have been acquitted since the allegations made in the complaint filed by the respondent and in the proceedings filed by the prosecution were not proved on merits. The said judgment of the   learned Magistrate First class has admittedly not been assailed before the higher forum.

The appellant husband had filed the proceedings for divorce on the ground of cruelty under section 13(1)(i-a) of the Hindu Marriage Act after such acquittal of the appellant and his family members of such offence under sections 498-A, 323, 504 and 506 of IPC. The said judgment, in my view, would squarely apply to the fact of this case.

  1. The Supreme Court in case of G.V.N. Kameswara Rao vs. G. Jabilli, reported in (2002) 2 SCC 296 has adverted to its earlier judgment in case of V. Bhagat vs. D. Bhagat, reported in (1994) 1 SCC 337 in which it was held that a mental cruelty under section 13(1)(i-a) can be defined as that conduct which inflicts upon the other party such mental pain and suffering as would make it not possible for that party to live with the other. The situation must be such that the wronged party cannot reasonably be asked to put up with such conduct and continue to live with the other party. The Court must have regard 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. In that case also both the parties did not live together for a long period as happy married couple. The Supreme Court held in that case that the appellant husband could not be denied the relief by invoking section 23(1)(a) of the Hindu Marriage Act.
  1. A perusal of the record clearly indicates that the appellant and the respondent did not stay together for more than five days after their marriage and have been staying separately since 2002. The   respondent could not prove her case before the Criminal Court though the prosecution had examined six witnesses, including the respondent herein and the appellant and his family members were arrested and were subsequently released. The finding rendered by the learned Magistrate First Class acquitting the appellant and his family members has attained finality. There was a complete irretrievable break down of the marriage of the appellant and the respondent within a short span of time.
  1. The judgments referred to aforesaid clearly indicate that if the complaint filed by the wife against the husband under section 498-A of IPC and other related provisions was dismissed on merits and the husband and his family members are acquitted, it was clear that the complaint filed by the wife against the husband was a false complaint. In my opinion, filing of such complaint itself which create mental trauma on the husband and the complaint which was seriously prosecuted by the wife by leading evidence of several persons and bringing the said complaint to its logical conclusion which ultimately resulted in acquittal of the husband and his family members clearly amounted to the cruelty committed by the wife upon the husband.
  1. The judgments of the Supreme Court and this Court which are referred to aforesaid squarely apply to the facts of this case. I am respectfully bound by those judgments. There is no dispute that the husband and his family members were ultimately acquitted in such complaint made by the respondent. It was not the case of the respondent before the trial Court as well as before the lower appellate Court that the finding rendered by the learned Magistrate First Class were erroneous and such allegations were not independently proved by the respondent before the learned trial Court as well as before the   lower appellate Court. A perusal of the order passed by the lower appellate Court indicates that the evidence led by the respondent and other witnesses in the said criminal proceedings and the findings rendered by the learned Magistrate First Class have been totally ignored by the learned trial Court.
  1. The Supreme Court as well as this Court in the aforesaid judgments have consistently held that if the false criminal complaint is preferred by either spouse it would invariably and indubitably constitute matrimonial cruelty, such as would entitle the other spouse to claim a divorce. In my view, the respondent having filed a false complaint alleging offence under section 498-A, 323, 504 and 506 of IPC in which the appellant and his family members were acquitted and thus the appellant was entitled to seek divorce on the ground of cruelty under section 13(1)(i-a) of the Hindu Marriage Act.
  1. Insofar as the submission of the learned counsel for the respondent that the judgments relied upon by the appellant cannot be considered as a binding precedent on the ground that all such judgments were delivered under Family Court appeals where the Court could consider not only the question of law but also the question of facts is concerned, in my opinion, there is no substance in this submission of the learned counsel for the respondent. In each of these judgments even if few of them have been decided arising out of the orders passed by the Family Court, the Courts have laid down the principles of law after considering the facts in each case which facts were identical to the facts in this case. In the present case the proceedings of divorce filed by the appellant as well as the proceedings seeking restitution of conjugal rights filed by the respondent wife were filed before the learned Civil Judge, Senior   Division which Court had jurisdiction to hear both these proceedings. There was no Family Court constituted in Sangli when the said two proceedings were filed by the parties. The judgments relied upon by the appellant thus which are applicable to the facts of this case would be binding on this Court and also upon the parties. http://evinayak.tumblr.com/https://vinayak.wordpress.com/http://fromvinayak.blogspot.com
  1. Insofar as the submission of the learned counsel for the respondent that even if this Court comes to a conclusion that any cruelty was committed by the respondent upon the appellant, the respondent was still entitled to the relief of restitution of conjugal rights under section 9 of the Hindu Marriage Act is concerned, a perusal of section 9 of the Hindu Marriage Act clearly indicates that the application for restitution of conjugal rights can be filed under that provision only if when either husband or wife has without reasonable excuse withdrawn from the society of the other, the aggrieved party, may apply for restitution of conjugal rights and the Court after being satisfied of the truth of the statement made in such petition and that there was no legal ground as to why such application should not be granted, may decree restitution of conjugal rights accordingly. It is provided that the burden of proving the reasonable excuse shall be on the person, who has withdrawn from the society.
  1. In this case the respondent wife had filed a complaint under section 498-A and other relevant provisions of IPC. The respondent after filing such complaint and after arrest of the appellant and his family members had filed a petition under section 9 of the Hindu Marriage Act on 21st December, 2002 inter-alia praying for restitution of conjugal rights. The husband on the other hand filed the marriage petition inter-alia praying for annulment of the marriage and for divorce, including on the ground of cruelty on 10 th March, 2006.

The question that arises for consideration of this Court is that whether a wife who had filed a false complaint under section 498-A and other relevant provisions of IPC in which the husband and his family members were arrested and were subsequently acquitted can continue to maintain a petition under section 9 of the Hindu Marriage Act for seeking restitution of conjugal rights or not.

  1. The Supreme Court in case of V. Bhagat vs. D. Bhagat, (supra) has held that a mental cruelty under section 13(1)(i-a) can be defined as that conduct which inflicts upon the other party such mental pain and suffering as would make it not possible for that party to live with the other. It is held that mental cruelty must be of such a nature that the parties cannot reasonably be expected to live together. It is also held that the situation must be such that the wronged party cannot reasonably be asked to put up with such conduct and continue to live with the other party. In my view the said judgment clearly applies to the facts of this case.
  1. The parties have been staying separately since 2002. In my view, since the appellant husband and his family members were wrongly implicated in a false case filed by the respondent alleging the offence under sections 498-A, 323, 504 and 506 of IPC and were arrested by the police and the said complaint was subsequently prosecuted rigorously by the respondent till it was brought to its logical conclusion and the appellant and his family members having been exonerated of all such charges and were acquitted, in my view, the appellant had withdrawn from the society of the respondent with a reasonable excuse.
  1. In my opinion, the respondent having treated the appellant   with cruelty and such allegations having been proved, the respondent at the same time could not maintain her application for restitution of conjugal rights by filing an application under section 9 of the Hindu Marriage Act, 1955. The husband, who had suffered mentally in view of such false criminal case filed by the wife and admittedly in which he and his family members were acquitted, cannot be compelled by the Court by passing an order of restitution of conjugal rights under section 9 of the Hindu Marriage Act, 1955 and to co-habit with the wife. In my view, once the husband has made out a case of divorce and had proved the cruelty committed by the wife under section 13(1) (i-a) of the Hindu Marriage Act, the wife could not maintain her application for restitution of conjugal rights under section 9 of the Hindu Marriage Act, 1955.
  1. In my view, the appellant husband had proved before both the Courts below that he had withdrawn from the society of the respondent due to the respondent having committed cruelty upon the appellant and such withdrawal from the society of the respondent was not without a reasonable excuse. In my view, both the reliefs are counter point to each other. Once the cruelty committed by the wife is proved by the husband, no relief for restitution of conjugal rights can be granted by the Court. Both the reliefs cannot be granted together at the same time. In my view, there is thus no substance in the submission made by the respondent that even if it was proved that the wife had treated the husband with cruelty, she will be independently entitled to maintain her application for restitution of conjugal rights under section 9 of the Hindu Marriage Act, 1955.
  1. In my view no spouse can be allowed to urge that he or she would treat other with cruelty and at the same time would also   force other to co-habit with him or her by filing application under section 9 of the Hindu Marriage Act for restitution of conjugal rights under the same roof. In my view, since the appellant husband had proved the case of cruelty on the part of the wife, the learned trial Judge as well as the lower appellate Court ought to have considered such case as a fit case for divorce and not a fit case for granting a relief under section 9 of the Hindu Marriage Act, 1995 for restitution of conjugal rights in favour of the respondent. In my view, since the husband was entitled to a decree of divorce under section 13(1)(i-a) of the Hindu Marriage Act, 1955, there was no question of the trial Court as well as the lower appellate Court granting the relief of restitution of conjugal rights under section 9 of the Hindu Marriage Act, 1955.
  1. Insofar as substantial questions of law made in Second Appeal Nos.396 of 2013 and 397 of 2013 are concerned, the said questions are answered in the negative. In my view there is no positive finding required to be rendered in the judgment of acquittal that the complaint filed was false and was with an intention to defame the other party.
  1. I therefore pass the following order :-

a). Second Appeal Nos.396 of 2013 and 397 of 2013 are allowed. The order dated 18th January, 2002 passed by the lower appellate Court in Regular Civil Appeal Nos.216 of 2008 and 215 of 2009 is set aside.

b). Hindu Marriage Petition No.49 of 2006 filed by the appellant in the Court of Civil Judge, Senior Division, Sangli inter-alia   praying for annulment of marriage and for divorce is decreed on the ground of cruelty under section 13(1)(i-a) of the Hindu Marriage Act, 1955.

c). Hindu Marriage Petition No.179 of 2002 filed by the respondent under section 9 of the Hindu Marriage Act, 1955 for restitution of conjugal rights is dismissed.

d).            No order as to costs.

 

(R.D. DHANUKA, J.)

 

ig

 

*****************************disclaimer**********************************
This judgment and other similar judgments posted on this blog was / were collected from Judis nic in website and / or other websites of Govt. of India or other internet web sites like worldlii or indiankanoon or High court websites. Some notes are made by Vinayak. Should you find the dictum in this judgment or the judgment itself repealed or amended or would like to make improvements or comments, please post a comment on the comment section of the blog and if you are reading this on tumblr please post responses as comments at vinayak.wordpress.com . Vinayak is NOT a lawyer and nothing in this blog and/or site and/or file should be considered as legal advise.
*******************************************************************************
CASE FROM JUDIS / INDIAN KANOON WEB SITE with necessary Emphasis, Re formatting
*******************************************************************************

 

facts & circumstances clearly indicate case is to wreak vengeance & is a gross misuse of 498A IPC.

In this case a woman who is already divorced from her husband and who is living away from her husband files a 498a using her own uncle and her son as witnesses !! She files a MC case, and on the day husband comes to attend the MC case she claims the husband demanded Dowry !! (even though it is after divorce)

The AP High court clearly goes thru the evidence, appreciates the serious anomalies in the evidence and lets the lower court verdict of acquittal stand

The Hon court also clarifies that this case is GROSS misuse of 498a IPA

Quoting the Honourable court :
“…..15. The various facts and circumstances would clearly indicate that the complaint submitted by P.W. 1 was nothing but a step to wreak vengeance against the accused and the whole case presents an instance of gross misuse of provisions of Section 498A of IPC.

16. The Trial Court has discussed the evidence on record in proper perspective and had arrived at a just and proper conclusion, I do not see any reason to differ with the finding recorded by the Trial Court. The Crl.R.C. and the Crl. Appeal are accordingly dismissed……..”

***************************************

Andhra High Court

Perugu Varalakshmi vs State And Ors. on 17 December, 2002

Equivalent citations: II (2004) DMC 610

Author: L N Reddy

Bench: L N Reddy

JUDGMENT L. Narasimha Reddy, J.

1. In C.C. No. 39 of 1995 on the file of First Additional Munsif Magistrate, Tenali, Perugu Nageswara Babu (A1) and his parents Perugu Narasimha and Perugu Venkayamma (A2 and A3) were tried for offence under Section 498A, IPC. The Trial Court, through its judgment dated 22.9.1997, acquitted the accused. The State filed Criminal Appeal No. 199 of 1998 and the de facto complainant, that is the wife of A1 Perugu Varalakshmi filed Crl. R.C. No. 1224 of 1997 against the judgment of the Trial Court.

2. The case of the prosecution was that Perugu Varalakshmi (P.W. 1) as married to A1 in the year 1991 and both of them gave birth to a son P.W. 2. Subsequently, A1, A2 and A3 started harassing the P.W, 1 for bringing money as well as to convey the property at Tenali in favour of A1. P.W. 1 filed a complaint (Ex. P1) alleging that she has been harassed by A1 for bringing more dowry and to convey the property, The complaint was specific with reference to an incident, said to have taken place on 27.1.1995.

3. On receipt of the report, the police have taken up the investigation. They have recorded the statement of P.W. 1 as well as P.W. 2, who is the son of P.W. 1 and A1. The statements of other witnesses were also recorded under Section 161, Cr.P.C.

4. During the course of trial, the prosecution examined PWs. 1 to 6 and marked Exs. P. 1 and P. 2. P.W. 1 is the complainant herself and P.W. 2 is her son. P.W. 3 is the maternal uncle of P.W. 1. P.Ws. 4 and 5 are said to be the eye-witnesses to the incident said to have taken place on 27.1.1995. P.W. 6 is the Sub-Inspector of Police, who has investigated the case. Ex. P. 1 is the Report given by P.W. 1 to the Police and Ex. P2 is the FIR. Exs. D1 to D5 were marked on behalf of the Defence. Ex. D1 is the portion of the affidavit filed by P.W. 1 in the CMA in this Court. Exs. D2 to D5 are the portions of statement under Section 161 of P.Ws. 1/2 and 3.

5. On appreciation of the oral and documentary evidence, the Trial Court found that there were material inconsistencies in the evidence adduced on behalf of the prosecution and that no case was made out against the accused under Section 498 A and accordingly acquitted the accused of the offences alleged against them.

6. The learned Public Prosecutor and Mr. Dharma Rao, Advocate, who appeared in the appeal and Revision respectively submit that the evidence before the Trial Court was sufficient to convict the accused, respondents herein. It is their case that independent witnesses P.Ws. 4 and 5 have deposed to the factum of physical assault on P.W. 1 by A1 and his insistence on bringing more dowry and conveyance of the property. It is their case that the various instances that have taken place ever since the marriage of P.W. 1 with A1 would certainly constitute harassment and offence under Section 498-A. http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com

7. The learned Counsel for the accused/respondents, on the other hand, submits that P.W. 1 was only trying to wreak vengeance against the accused, in view of the decree of divorce passed against her and her not being able to be successful in the maintenance case filed by her.

8. The marriage of P.W. 1 with A1 took place in the year 1981. They lived together for about 2 years and P.W. 2 was born. Thereafter, P.W. 1 left the house of A1 in the year 1983. It has come on record that ever since 1983, P.W. 1 and A1 never lived together. A1 filed O.P. No. 36/1984 for divorce. The same is said to have been allowed on 30.7.1992. Thereby, the marital relationship between them ceased to exist. P.W. 1 has filed MC No. 22/1992 in the Court at Tenali, where she was living with her parents. The case was posted on 27.1.1995. A1 attended to the Court on that day.

9. The incident that gave rise to filing of the complaint by P.W. 1 is that on 27.1.1995, A1 was passing in front of her parents’ house at Tenali. Having noticed him, she sent P.W. 2, her son, to request A1 to take herself and P.W. 2 with him to Nizampatnam. When P. 2 was imploring A1, she too has gone to him. She alleged that A1 replied stating that unless the amount demanded by him is paid and the property is conveyed, he will not take them and when P.Ws. 1 and 2 insisted, he kicked P.W. 1. The incident was said to have been witnesses by P.Ws. 4 and 5.

10. P.W. 1 is none other than the complainant. She did not depose any thing about the proceedings that have taken place between herself and A1. Her version being self-serving cannot be totally relied upon. P.W. 2 is her son. Accordingly to P.W. 2 on that day, he came back to his house from school since he was suffering from stomach ache. He deposed that on being asked by P.W. 1, he went to A1 who was going in that lane and requested him to take himself and his mother of Nizampatnam. He repeated what is stated by P.W. 1. One important aspect, which needs to be noticed, is that according to P.W. 2, he studied his 2nd class in Tenali and 3rd and 4th Class (1991-92) at Nizampatnam, at the house of A1 to A3. He deposed that during that period, A2 and A3 used to beat P.W. 1. The subsequent studies are said to have taken place at Tenali. When it was the categorical case of P.W. 1, as evidenced from various other records that she left the house of the accused in the year 1983 and thereafter never went to that place, the version of P.W. 2 that he himself and P.W. 1 lived at Nizampatnam during 1991-92 is just unbelievable. The prosecution did not place any record before the Trial Court to substantiate the contention of P.W. 2.

11. P.W. 3 is the maternal uncle of P.W. 1. On account of his close relationship with the complainant, his evidence needs to be examined with a note of caution. Further, his evidence is so self-contradictory that it hardly needs any consideration at all. He is said to have mediated between P.W. 1 and A1. According to him, he went to the house of A1 on 14.8.1994 along with one G. Subbaiah. The mediation failed and the statement with regard to the whole affair was recorded by the police under Section 161 on the next day itself. It is a matter of record that the statement under Section 161 was recorded on 28,1.1995. This is sufficient to brush aside his evidence.

12. P.Ws. 4 and 5 are said to have witnessed the incident that has taken place on 27.1.1995 in the street in which the house of the parents of P.W. 1 is located, It is their evidence that both of them wore proceeding in that lane at about 1.30 to 2.00 P.M. and they stopped at Thirupathamma Temple is Ganganammapet for drinking water. When they were drinking water, P.W. 2 called A1 and when both of them were discussing. P.W. 1 came and asked A1 to take them to Nizampatnam. A1 is said to have told P.W. 1 that unless the money is given and property is conveyed, he will not take them. Both the witnesses said that P.W. 1 had caught hold of the legs of P.W. 1. While P.W. 3 states that A1 has kicked her, P.W. 4 states that he pushed her with hands and left the place.

13. It is not in dispute that as on the date of incident, there existed decree of divorce between A1 and P.W. 1. On 27.1.1995, the case filed by P.W. 1 under Section 125, Cr.P.C. was posted. It has come in evidence that A1 came to attend the case and returned from the Court after noticing next date of hearing. The sine qua non for charging a husband with an offence under Section 498-A of IPC is existence of relationship of husband and wife. Once decree of divorce was granted in favour of A1 against P.W. 1, there did not exist any legal basis to prosecute the respondents herein.

14. Even otherwise, if the complaint of P.W. 1 is examined from the attendant circumstances, it is not at all difficult to discern that she was only trying to harass A1 to A3 on one pretext or the other. The whole basis in the complaint was that when P.Ws. 1 and 2 approached A1 and requested him to take them back to Nizampatnam, he is said to have told them that unless the money is paid and property is conveyed, he will not take them and thereafter kicked PW. 1. The complaint itself was found to be interpolated. By the date of complaint, P.W. 1 was living separately from A1 for the past 12 years. In the meanwhile, the divorce O.P. came to be decreed and several proceedings have ensued between them including MC No. 22/1992 filed by her for maintenance. Except P.W. 3, none has spoken to the act that any demands were made for reconciliation. The purpose for which A1 came to Tenali was to attend the case filed against him by P.W. 1. Not only there did not exist any scope for reconciliation even by the 3rd parties, let alone the P.W. 1, but also relations were strained to a very bitter extent. Nobody would expect a wife, under such circumstances, to approach a husband, that too in a street, with such demands and requests. It is just impossible for any one in the place of A1, in a town where he does not reside, to kick his wife in a public street. The evidence of the witnesses examined on behalf of the prosecution does not gain confidence of the Court.http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com

15. The various facts and circumstances would clearly indicate that the complaint submitted by P.W. 1 was nothing but a step to wreak vengeance against the accused and the whole case presents an instance of gross misuse of provisions of Section 498A of IPC.

16. The Trial Court has discussed the evidence on record in proper perspective and had arrived at a just and proper conclusion, I do not see any reason to differ with the finding recorded by the Trial Court. The Crl.R.C. and the Crl. Appeal are accordingly dismissed.

*****************************disclaimer**********************************
This judgment and other similar judgments posted on this blog was / were collected from Judis nic in website and / or other websites of Govt. of India or other internet web sites like worldlii or indiankanoon or High court websites. Some notes are made by Vinayak. Should you find the dictum in this judgment or the judgment itself repealed or amended or would like to make improvements or comments, please post a comment on the comment section of the blog and if you are reading this on tumblr please post responses as comments at vinayak.wordpress.com . Vinayak is NOT a lawyer and nothing in this blog and/or site and/or file should be considered as legal advise.
******************************************************************
CASE FROM JUDIS / INDIAN KANOON WEB SITE
******************************************************************