Tag Archives: 498a and arrest

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

 

AB in Dowry, 306 case as accused is 52 yrs old diabetic & other accused already quashed. Guj. HC

“…regarding the FIR, … vide order dated 6.2.2015 quashed and set aside the FIR against other co- accused. ….”

“…that present applicant is aged about 52 years and suffering from diabetes and other ailments. ….”

“…Having heard the learned counsel for the parties and perusing the record of the case and taking into consideration the facts of the case, nature of allegations, role attributed to the accused, without discussing the evidence in detail, at this stage, I am inclined to grant anticipatory bail to the applicant. ….”

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

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

CRIMINAL MISC.APPLICATION NO. 19319 of 2015

****************************************************************
RANJANBEN MANILAL BHANDARI….Applicant(s)
Versus
STATE OF GUJARAT & 1….Respondent(s)
****************************************************************
Appearance:
MR ADIL R MIRZA, ADVOCATE for the Applicant(s) No. 1
MR HARDIK SONI APP for the Respondent(s) No. 1
RULE UNSERVED for the Respondent(s) No. 2
http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com
****************************************************************

CORAM: HONOURABLE MR.JUSTICE Z.K.SAIYED

Date : 30/10/2015

ORAL ORDER

1. This is an application for anticipatory bail Section 438 of the Code of Criminal Procedure in connection with the FIR bearing CR No. I – 85 of 2009 registered with Umargam Police Station, for the offences punishable under Sections 498A, 306 and 114 of the Indian Penal Code.

2. Learned advocate for the applicant submitted that the applicant is an innocent lady and has not committed any alleged offence. He submitted that regarding the FIR, one application being Criminal Misc. Application No.4201 of 2010 was filed before this Court and this Court vide order dated 6.2.2015 quashed and set aside the FIR against other co- accused. He submitted that against present applicant, the FIR was not quashed, as said applicant was not pressed at that time. He also submitted that present applicant is aged about 52 years and suffering from diabetes and other ailments. He therefore, submitted that the present applicant may kindly be granted anticipatory bail by imposing suitable conditions.

3. Heard learned APP for the respondent State. He has vehemently opposed the present application and submitted that no discretionary relief is required to be exercised in favour of the present applicant.

4. Having heard the learned counsel for the parties and perusing the record of the case and taking into consideration the facts of the case, nature of allegations, role attributed to the accused, without discussing the evidence in detail, at this stage, I am inclined to grant anticipatory bail to the applicant. This Court has also taken into consideration the law laid down by the Hon’ble Apex Court in the case of Siddharam Satlingappa Mhetre v. State of Maharashtra and Ors. reported in (2011)1 SCC 694, wherein the Hon’ble Apex Court reiterated the law laid down by the Constitutional Bench in the case of Shri Gurubaksh Singh Sibbia & Ors., reported in (1980)2 SCC 565.

5. Learned counsel for the parties do not press for further reasoned order.

6. In the result, the present application is allowed by directing that in the event of applicant herein being arrested pursuant to FIR being C.R.No.I- 85 of 2009 registered with Umargan Police Station, the applicant shall be released on bail on furnishing a personal bond of Rs.10,000/- (Rupees Ten Thousands only) with one surety of like amount, on the following conditions that she shall:

[a] cooperate with the investigation and make herself available for interrogation whenever and wherever required.

[b] shall remain present at the concerned Police Station on 4.11.2015 at 11.00 AM [c] shall not hamper the investigation in any manner nor shall directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to any police officer;

[d] at the time of execution of bond, furnish her residential address to the investigating officer and the Court concerned and shall not change the residence till the final disposal of the case or till further orders;

[e] not leave State of Gujarat without the permission of the Court and, if holding a passport, she shall surrender the same before the Trial Court within a week;

[f] not obstruct or hamper the police investigation and not play mischief with the evidence collected or yet to be collected by the police;

7. Despite this order, it would be open for the Investigating Agency to apply to the competent Magistrate, for police remand of the applicant. The applicant shall remain present before the learned Magistrate on the first date of hearing of such application and on all subsequent occasions, as may be directed by the learned Magistrate. This would be sufficient to treat the accused in the judicial custody for the purpose of entertaining application of the prosecution for police remand. This is, however, without prejudice to the right of the accused to seek stay against an order of remand, if, ultimately, granted and the power of the learned Magistrate to consider such a request in accordance with law. It is clarified that the applicant, even if, remanded to the police custody, upon completion of such period of police remand, shall be set free immediately, subject to other conditions of this anticipatory bail order. http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com

8. At the trial, the Trial Court shall not be influenced by the prima facie observations made by this Court while enlarging the applicant on bail.

9. Rule is made absolute. Application is disposed of accordingly. Direct service is permitted.

(Z.K.SAIYED, J.)

YNVYAS

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

Guj HC quashes 306, 498A agnst FIL’s sister & her husband, elders in jail due to a 498A, 306 case

Guj HC quashes 306, 498A against deceased woman’s father in law’s sister & her husband, two elders in jail, due to a 498A, 306 case

In this case, an elderly husband and wife, 70 and 74 years old, sisters of the deceased woman’s father in law, elders who were living away from the deceased woman, languish in Jail because the woman’s father ropes them into a 306, 498A case. Hon Guj HC appreciates the facts, analyses the accusations and quashes the case against them !!

The Hon HC states “……So far as Section 498A of the Indian Penal Code is concerned, the prosecution is obliged to point out the willful conduct which is of a nature as is likely to drive the woman to commit suicide. There has to be some material to prima facie indicate that the cruelty or harassment was un-abetted, incessant, persistent and being grave in nature unbearable with the intention to force the woman or drag her to commit suicide or to fulfill illegal demand of dowry. As held in catena of the decisions of the Supreme Court, Section 498A of the Indian Penal Code would not come into play in all the cases of harassment and/or cruelty and reasonable nexus between cruelty and suicide must be shown. The usual wear and tear in a matrimonial life would not attract Section 498A of the Indian Penal Code. …….. “

The Hon HC affirmatively quotes the Apex court’s words in the case of Ramesh kumar v. State of Chhatisgarh [(2001) 9 SCC 618] “…The other circumstances of the case’ used in Section 113A suggests the need to reach a cause and effect relationship between the cruelty and the suicide for the purpose of raising a presumption. Last but not the least the presumption is not an irrebuttable one. In spite of a presumption having been raised the evidence adduced in defence or the facts and circumstances otherwise available on record may destroy the presumption. ….”

The Hon HC affirmatively quotes The Hon’ble Supreme Court in case of Amalendu Pal @ Jhantu vs. State of West Bengal, 2010 AIR(SC) 512 “….”16. In order to bring a case within the purview of Section 306 of IPC there must be a case of suicide and in the commission of the said offence, the person who is said to have abetted the commission of suicide must have played an active role by an act of instigation or by doing certain act to facilitate the commission of suicide. Therefore, the act of abetment by the person charged with the said offence must be proved and established by the prosecution before he could be convicted under Section 306 IPC….”

**********************************************************
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL MISC.APPLICATION (FOR QUASHING & SET ASIDE FIR/ORDER) NO. 11931 of 2015
FOR APPROVAL AND SIGNATURE: HONOURABLE MR.JUSTICE J.B.PARDIWALA

**********************************************************
1 Whether Reporters of Local Papers may be allowed to see the judgment ? NO
2 To be referred to the Reporter or not ? NO
3 Whether their Lordships wish to see the fair copy of the judgment ? NO
4 Whether this case involves a substantial question of law as to the interpretation of the Constitution of India or any order made thereunder ? NO

**********************************************************
BABULAL DURICHAND ANCHALIA & 1….Applicant(s)
Versus
STATE OF GUJARAT & 1….Respondent(s)
**********************************************************
Appearance:
MR ANKIT B PANDYA, ADVOCATE for the Applicant(s) No. 1 – 2
MR JIGAR G GADHAVI, ADVOCATE for the Respondent(s) No. 2

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

CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA

Date : 30/10/2015

CAV

JUDGMENT

1 By this application under Section 482 of the Code of Criminal Procedure, 1973, the applicants – the husband and wife aged 74 and 70 respectively, seek to invoke the inherent powers of this Court, praying for quashing of the proceedings of the Criminal Case No.25819 of 2015 pending at the stage of committal in the Court of the 5th Additional Senior Civil Judge and Judicial Magistrate First Class, Surat, arising from the First Information Report bearing I­C.R. No.27 of 2015 registered with the Puna Police station, Surat for the offence punishable under Sections 306, 498A read with 114 of the Indian Penal Code.

2 The case of the prosecution in brief is as under:

2.1 The daughter of the respondent No.2,namely, Shilpa (deceased) had got married on 07.02.2010 with a boy named Vikash Vijaychand Chopda – original accused at village Gangashaher, Taluka and District, Bikaner (Rajasthan). According to the father of the deceased, after marriage, the deceased started residing with her husband, father­in­law and mother­in­law at Kolkata. In the wedlock, a son was born named ‘Manas’, who, as on today, is aged 4 years. Thereafter, a daughter was born, namely, ‘Mansi’, who, as on today, is aged 1 ½ years. It is alleged that after about one year from the date of the marriage, the husband started harassing the deceased on petty issues. However, with a view to see that the matrimonial life does not get disturbed, the family members used to persuade the deceased to adjust herself in life. It is alleged that while the deceased was residing at Kolkata, her father­in­law and mother­in­law also used to cause harassment to her. It is further alleged that before about 10 months from the date of the incident, the deceased along with her husband and two minor children got settled at Surat. The husband was able to get a job at the Pandesara G.I.D.C. in one of the Dyeing units. It is further alleged in the First Information Report, that the husband and the in­laws used to demand for money and the first informant used to help monetarily according to his financial capacity. On 18.02.2015, the birthday of the son of the deceased, viz. ‘Manas’ was celebrated. However, the first informant and his family members were not informed about the party which was thrown for the birthday celebration. It is alleged that the deceased used to call up her father on mobile and convey about the harassment caused to her by the husband and the in­laws. On 27.02.2015, the deceased is said to have called up her father twice and conveyed that her father­in­law and the mother­in­ law and the two applicants herein (i.e. the father­in­law’s sister and the husband of the father­in­law’s sister) had come to her house and had levelled allegations against her about the household work and further that the deceased had sold off her jewellery. The deceased is said to have further conveyed that Vikash i.e. her husband had beaten her up. The deceased requested her father to make arrangements to see that someone would drop her at the house of her maternal uncle. According to the first informant, he did not take the words or what was conveyed by the deceased seriously. Thereafter, at about 11.49 hours in the night, the father received a message on mobile stating “Papa do not speak anything at present. Whatever I have conveyed to you do not pass it on to the others. You may talk in the morning and my mother­in­law has alleged that Shipla would run away with money”. According to the first informant, he did not call up his daughter in the morning on 23.02.2015. However, the father­in­law of the deceased called up in the morning at about 9.30 hours and conveyed that Shilpa i.e. the deceased had committed suicide by jumping from the 5th floor gallery. The deceased was shifted to the hospital where she was declared dead. It is alleged that the accused persons abetted the commission of the suicide punishable under Section 306 of the Indian Penal Code.

2.2 The statement of the mother of the deceased is almost on the same line as what has been alleged in the First Informant Report. So far as the other statements are concerned, I find a remote reference of the two applicants herein.

3 After the registration of the F.I.R., all the accused persons including the applicants herein were arrested. The applicants herein, who have as such nothing to do with the matrimonial life of the deceased, have also been implicated, and are in the judicial custody as on today. The only allegation against the two applicants herein is that they had gone at the house of the deceased in the late evening on 22.02.2015 and are alleged to have spoken something about the household work and jewellery. It appears that the applicants herein are residents of Surat. Their house is at little distance from the house where the deceased was residing.

4 Mr. Narendra Jain, the learned advocate appearing for the applicants submitted that even if the entire case of the prosecution is accepted as true, none of the ingredients to constitute the offence punishable under Section 306 or Section 498A of the Indian Penal Code could be said to have been spelt out so far as the applicants are concerned. He submitted that the ingredients for abatement for suicide would be satisfied only if the suicide is committed by the deceased due to direct alarming encouragement or incitement by the accused leaving no option but to commit suicide. He submitted that even if the presence of the two applicants herein at the house of the deceased in the evening on 22.02.2015 is believed, nothing could be alleged against them which would constitute an offence under Sections 306 and 498A of the Indian Penal Code.

5 He submitted that for no fault on the part of the applicants, they are languishing in jail as on today. He, therefore, prayed that the proceedings be quashed so far as the applicants herein are concerned.

6 On the other hand, this application has been vehemently opposed by Mr. Jigar Gadhvi, the learned advocate appearing for the respondent No.2 – first informant. He submitted that there is more than a prima facie case against the applicants to put them to trial for the offence punishable under Sections 306 and 498A of the Indian Penal Code. He submitted that as the action of committing suicide is on account of great disturbance to the psychological imbalance of the deceased such incitement can be divided into two broad categories, one normally where the deceased is having sentimental tie or physical relations with the accused, and second category would be where the deceased is having relations with the accused in official capacity. He submitted that the case in hand falls in the first category and consequently, creating the situation of depression, incessant harassment may give temptation to the person to commit suicide. He submitted that the former category leaves more expectation, whereas in the latter category, by and large, expectation and obligation are prescribed by law, rules and regulations. He submitted that in such circumstances, a legitimate prosecution may not be quashed at this stage. In support of his submissions, he placed reliance on the following decision:

(1) A.K. Chaudhary and others v. State of Gujarat and others [2005(3) GLH 444]

(2) State of A.P. v. Aravapally Venkanna and another [2009(2) GLH 572]

(3) Chintresh Kumar Chopra v. State (Government of NCT of Delhi) [(2009(16) SCC 605]

(4) A.M. Kapoor v. Rameshchander and another [(2012) 9 SCC 460]

7 The learned APP appearing for the State also opposed this application and submitted that no case is made out for quashing of the proceedings at this stage.

8 Having heard the learned counsel appearing for the parties and having gone through the materials on record, the only question that falls for my consideration is whether the criminal proceedings should be quashed so far as the applicants herein are concerned.

9 The following emerges from the papers of the chargesheet:

(1) In the entire First Information Report as well as the other statements forming part of the chargesheet, there are no allegations against the applicants herein that they were continuously harassing the deceased in any way or the other.

(2) There are no allegations in the First Information Report as well as the other statements that the applicants herein used to instigate the husband and the in­laws on account of which there was incessant harassment to the deceased.

(3) The allegations are against the husband. The husband used to beat and harass the deceased a lot. The husband was alcoholic. It appears from the statement of one Shri Prakash Tikamchand Nahta (Jain), the brother of the first informant, which is at page 25 of the paper book, that it was conveyed to him by his brother i.e. the first informant. On 23.02.2015, Shilpa had called up and conveyed to the first informant that she was being beaten up by her husband and in the morning, she jumped from the 5th floor gallery of the flat. The first informant had not spoken anything to his brother as regards the applicants herein.

(4) The allegations in the First Information Report lodged by the father of the deceased are that on 22.02.2015, the applicants herein had come to the house of the deceased along with the father­in­law and the mother­in­law and had reprimanded the deceased as regards the household work and further alleged that the deceased had sold off the jewellery. Except this, there is nothing against the applicants herein.

(5) The applicants could be said to be distant relatives. They are “‘Fuvaji­in­law” (the husband of the father­in­law’s sister) and “Fuiji­in­ law” (the father­in­law’s sister) of the deceased. They are residing independently.

(6) It appears that immediately after the marriage, matrimonial disputes cropped up. The deceased was residing at Kolkata with her family. According to the first informant, she was being harassed at Kolkata. The applicants herein are residents of Surat. Nowhere, it has been stated that at any point of time, the applicants had visited the deceased at Kolkatta.

(7) The husband had become alcoholic. He was also persuaded and to understand that the alcohol would ruin his life. At one point of time, there was a settlement also.

10 Having regard to the facts narrated above, could it be said that the applicants herein abetted the commission of suicide in any manner.

11 Section 306 of the Indian Penal Code reads as under:

“306. Abetment of suicide­ If any person commits suicide, whoever abets the commission of such suicide, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.”

12 It is a settled law that before a person is alleged to have abetted the commission of suicide, the prosecution must show some convincing and cogent evidence that the accused persons intended the consequences of the act, namely, suicide and abetted the suicide within the meaning of Section 107 of the Indian Penal Code. It is equally well settled that mere harassment or cruelty, which drags the woman to commit suicide, is not sufficient to constitute the offence under Section 306 of the Indian Penal Code. Section

107 of the Indian Penal Code is with regard to the abetment. Section 107 of the Indian Penal Code reads as under:

“107. Abetment of a thing A person abets the doing of a thing, who­ First.­Instigates any person to do that thing; or Secondly.­Engages with one or more other person or persons in any conspiracy for the doing of that thing, if an act or illegal omission takes place in pursuance of that conspiracy, and in order to the doing of that thing; or Thirdly.­Intentionally aids, by any act or illegal omission, the doing of that thing.

Explanation 1.­A person who, by wilful misrepresentation, or by wilful concealment of a material fact which he is bound to disclose, voluntarily causes or procures, or attempts to cause or procure, a thing to be done, is said to instigate the doing of that thing.

Illustration A, a public officer, is authorized by a warrant from a Court of Justice to apprehend Z, B, knowing that fact and also that C is not Z, willfully represents to A that C is Z, and thereby intentionally causes A to apprehend C. Here B abets by instigation the apprehension of C.

Explanation 2.­Whoever, either prior to or at the time of the commission of an act, does anything in order to facilitate the commission of that act, and thereby facilitates the commission thereof, is said to aid the doing of that act.”

13 At this stage, it would be apposite to look into the provisions of Section 113­A of the Evidence Act, which reads as under:

“113A. Presumption as to abetment of suicide by a married woman When the question is whether the commission of suicide by a woman had been abetted by her husband or any relative of her husband and it is shown that she had committed suicide within a period of seven years from the date of her marriage and that her husband or such relative of her husband had subjected her to cruelty, the court may presume, having regard to all the other circumstances of the case, that such suicide had been abetted by her husband or by such relative of her husband.

Explanation.­For the purposes of this section, “cruelty” shall have the same meaning as in section 498A of the Indian Penal Code.”

14 The Supreme Court in the case of Ramesh kumar v. State of Chhatisgarh [(2001) 9 SCC 618] has explained the effect of Section 113­A of the Evidence Act in paras 12 and 13. Paras 12 and 13 read as under:

“12… To attract applicability of Section 113A, it must be shown that (i) the woman has committed suicide, (ii) such suicide has been committed within a period of seven years from the date of her marriage, (iii) the husband or his relatives, who are charged had subjected her to cruelty. On existence and availability of the abovesaid circumstances, the Court may presume that such suicide had been abetted by her husband or by such relatives of her husband. The Parliament has chosen to sound a note of caution. Firstly the presumption is not mandatory; it is only permissive as the employment of expression “may presume” suggests. Secondly, the existence and availability of the abovesaid three circumstances shall not, like a formula, enable the presumption being drawn; before the presumption may be drawn the Court shall have to have regard to ‘all the other circumstances of the case’…”

“13. The expression :­’The other circumstances of the case’ used in Section 113A suggests the need to reach a cause and effect relationship between the cruelty and the suicide for the purpose of raising a presumption. Last but not the least the presumption is not an irrebuttable one. In spite of a presumption having been raised the evidence adduced in defence or the facts and circumstances otherwise available on record may destroy the presumption. The present case is not one which may fall under clauses secondly and thirdly of Section 107 of Indian Penal Code.”

15 I shall now look into Section 498A of the Indian Penal Code, which reads as under:

“498A. Husband or relative of husband of a woman subjecting her to cruelty­ Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine.

Explanation.­For the purposes of this section, “cruelty” means­

(a) any wilful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman; or

(b) harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand.]”

16 Section 498A of the Indian Penal Code speaks about cruelty by the husband or the relatives of the husband. So far as Section 498A of the Indian Penal Code is concerned, the prosecution is obliged to point out the willful conduct which is of a nature as is likely to drive the woman to commit suicide. There has to be some material to prima facie indicate that the cruelty or harassment was unabetted, incessant, persistent and being grave in nature unbearable with the intention to force the woman or drag her to commit suicide or to fulfill illegal demand of dowry. As held in catena of the decisions of the Supreme Court, Section 498A of the Indian Penal Code would not come into play in all the cases of harassment and/or cruelty and reasonable nexus between cruelty and suicide must be shown. The usual wear and tear in a matrimonial life would not attract Section 498A of the Indian Penal Code. http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com

17 In the present case, except one incident i.e. the alleged act of saying something to the deceased with regard to some household work and alleging that the deceased had sold off her jewellery, there is no other material to even prima facie indicate that the applicants herein were unnecessarily or intentionally interfering with the matrimonial life of the deceased. It appears that after the deceased rented a house at Surat, which was at some distance from the house of the applicants herein. It is possible that being relatives, they might have visited the house of the deceased in the evening on 23.02.2015. Let me believe as true what is alleged by the prosecution. I am of the view that by any stretch of imagination, it could not be said that the applicants herein caused any harassment within the meaning of Section 498A of the Indian Penal Code or abetted the commission of suicide. I may only say that the deceased was a disturbed lady. She was fed up with her husband who used to beat her and was alcoholic. It is possible even if it is believed to be true at this stage that the incident which occurred in the evening might have added more to the misery of the deceased, but it cannot be said that the applicants herein abetted the commission of suicide. I may at this stage at the cost of repetition state that there is no reference at all of the two applicants herein in the statement of the brother of the father of the deceased. It appears that soon before the deceased committed suicide, she was beaten up by her husband and this might be during the night hours. The case of the prosecution is that she jumped from the 5th floor of the gallery at about 5.30 hours in the early morning.

18 I had an occasion to consider the law on the subject of abetment of suicide in the case of Lalitbhai Vikramchand Parekh v. State of Gujarat (Criminal Miscellaneous Application No.16032 of 2014). In this case, five members of one family committed suicide. I may quote the relevant observations as contained in paras 11 to 28 as under:

11. Abetment of suicide is made punishable by Section 306 which provides that “if any person commits suicide, whoever abets the commission of such suicide, shall be punished.” (emphasis supplied) The section does not define the expression” “abet”, nor is the expression defined in Chapter II of the Code which deals with the general explanations”. However, Chapter V of the Code incorporates an elaborate statement of “abetment”. Section 107 in this Chapter defines “abetment of a thing”, while Section 108 defines the expression “abettor”.

This is how these sections run :

Section 107 ­Abetment of a thing “A person abets the doing of a thing, who First – ­Instigates any person to do that thing or Secondly – ­Engages with one or more other person or persons in any conspiracy for the doing of that thing, if an act or illegal omission takes place in pursuance of that conspiracy, and in order to the doing of that thing; or Thirdly – ­Intentionally aids, by any act or illegal omission, the doing of that thing.

Explanation 1.­A person who, by wilful misrepresentation, or by wilful concealment of a material fact which he is bound to disclose, voluntarily causes or procures, or attempts to cause or procure, a thing to be done, is said to instigate the doing of that thing. Explanation 2.­­­Whoever, either prior to or at the time of the commission of an act, does anything in order to facilitate the commission of that act, and thereby facilitates the commission thereof, is said to aid the doing of that act.”

12. Section 108 ­ Abettor­ “‘A person abets an offence, who abets either the commission of an offence, or the commission of an act which would be an offence, if committed by a person capable by law of committing an offence with the same intention or knowledge as that of the abettor”.

Explanation 1.­ The abetment of the illegal omission of an act may amount to an offence although the abettor may not himself be bound to do that act.

Explanation 2.­ To constitute the offence of abetment it is not necessary that the act abetted should be committed, or that the effect requisite to constitute the offence should be caused.

Explanation 3.­ It is not necessary that the person abetted should be capable by law of committing an offence, or that he should have the same guilty intention or knowledge as that of the abettor, of any guilty intention or knowledge.

Explanation 4.­ The abetment of an offence being an offence, the abetment also an offence.

Explanation 5.­ It is not necessary to the commission of the offence of abetment by conspiracy than the abettor should concern the offence with the person who commits it. It is sufficient if he engages in the conspiracy in pursuance of which the offence is committed.”

13. As the expressions “abetment” and “abettor” have been legislatively defined, the ordinary dictionary meaning of the expressions would not be determinative of their import. It may, however, be useful to have a look at the ;dictionary meaning of the expression “abet”. According to Webster, Webster’s Third New International Dictionary Vol. I, the expression “abet”, means to incite, encourage instigate, or countenance­now usually used disparagingly. According to Wharton, Whartone’s Law Lexicon, 14th ed., “abet” means to stir up or excite, to maintain or patronize : to encourage or set on and the “abettor” is an instigator or setter on, one who promotes or procures a crime to be committed. Stroud, Stroud’s Judicial Dictionary, 4th ed., has given various meanings of the expression “aid” or “abet”, based on judicial pronouncements in England, in the context of different statutes.

Thus, according to Hawkins, 51 L J.M.C. 78­R. v. Coney, J., “To constitute an aider or abettor, some active steps must be taken, by word or action, with intent to instigate the principal or principals. Encouragement does not, of necessity, amount to aiding and abetting. It may be intentional or unintentional. A man may unwillingly encourage another in fact by his presence, by misinterpreted gestures, or by his silence or non­interference­ or he may encourage intentionally by expressions, gestures, or actions, intended to signify approval. In the latter case, he aids and abets; in the former he does not.” Stroud also cites the case of Du Cros v. Lambourne, 1907 (1) K. B. 40.. in which it was held that “the owner in, and in control of, a motor car which is being driven at an improper speed by a driver who is not his servant, “aids or abets” in the offence if he (the owner) does not interfere.” It is further noticed on the basis of decision in the case of Rubie v. Faulkner, 1980 (1) K.B. 571 : “For a supervisor of a learner driver to see that an unlawful act is about to be done and to fail to prevent it is he can is for him to aid and abet.” It is further noticed, on the authority of the decision in the case of Callow v. Tillstone, 83 L.T. 411, that “A man does not by negligence aid and abet a person to expose unsound meat for sale.” It is further noticed, on the basis of the decision in the case of Ackroyds Air Travel v. Director of Police Prosecutions, 1950 (1) All. E.R. 933 and Thomas v. Lindop, 1950 (1) All. E.R. 966, that “If a person knows all the circumstances which constitute the offence he will be guilty of aiding and abetting whether he knew that they did in fact constitute the offence or not “ Stroud also quotes Lord Goddard C J. in Ferguson v. Weaving, 1951 (1) K.B 814, that “it is well know that the words ‘aid and abet are apt to describe the action of a person who is present at the time of the commission of an offence and takes some part therein.”

14. It may be useful to refer to some of the early English decisions, dealing with different ways of taking part in a felony, it was recognised that a felony may be committed by the hand of an “innocent agent” who, having no blamable intentions in that he did, incurred no criminal liability by doing it. In such a case, the man who “instigates” this agent is the real offender; his was the last mens rea that preceded the crime, though it did not cause it “immediately but mediately”. “Thus, if a physician provides a poisonous draught and tells a nurse that it is the medicine to be administered to her patient, and then by her administration of it the patient is killed, the murderous physician ­and not the innocent nurse­is the principal in the first degree Kel. 52 (T.A.C.).” In English Law, as it stood before the later developments, “a principal in the second degree is one by whom the actual perpetrator of the felony is aided and abetted at the very time when it is committed; for instance, a car­owner sitting beside the chauffeur who kills some one by over­fast driving, or a passenger on a clandestine joy­riding expedition which results in manslaughter 1930 (22) Cr, App. R. 70 : 144 L.T. 185, “or bigamist’s second ‘wife’ if she knows he is committing bigamy, or even be spectators if they actively encourage such a contest even by mere applause. “But a spectator’s presence at a prize­ fight does not of itself constitute sufficient encouragement to amount to an aiding and abetting 1882 (8) Q.B.D. 534.” It was also recognised that a man may effectively “aid and abet” a crime and at the very moment of its perpetration, without being present at the place where it is perpetrated. “To be guilty of aiding and abetting, a person must either render effective aid to the principal offender or else must be present and acquiesce in what he is doing. Before a person can be convicted of aiding and abetting the commission of an offence, be must at least know the essential matters which constitute the offence 1951 (1) All. E.R. 412(414).” “But acquiescene sufficient to constitute the offence may be established by evidence of the accused persons motive and of his subsequent conduct 1951 (1) All. E.R. 464.”

In the category of “accessory before the fact” comes a person who “procures or advises” one or more of the principals to commit the felony. This “requires from him an instigation so active that a person who is merely shown to have acted as the stakeholder for a prize­fight which ended fatally, would nut be punishable as an accessory 1875 (2) C.C.R. 147.” “The fact that a crime has been committed in a manner different from the mode which the accessory had advised will not excuse him from liability for it. But a man who has councelled a crime does not become liable as accessory if. instead of any form of the crime suggested, an entirely ‘different offence is committed 1936 (2) All. E.R. 813.” Kenny, Kenny’s Outlines of Criminal Law, New ed. by J.W.C. Turner, p. 88, points out that it is not always easy to decide whether or not the crime actually committed comes within the terms of the “incitement.” so as to make the inciter legally responsible for it. He further observed that the courts in some of the older cases tended to “take a strict view of the facts” and refers by illustration to the case of R. v. Saunders, Kel. 52 (T.A.C ) and Archer in 1578. referred to in Plowden.

15. For obvious reasons an act of suicide is not penal, even though an unsuccessful attempt at it is punishable. Suicide takes the victim or the perpetrator outside the purview of penal consequences, even though the common law in England at one time endeavoured to deter men from this crime by the threat of degradations to be inflicted upon the “suicide’s corpose”, which by a natural, if unreasoning association of ideas, were often a “potent deterrent”, and also by threatening the forfeiture of his goods, a “vicarious punishment” which though falling wholly upon his surviving family, was likely often to appeal strongly to his sense of affection. Thus the man who feloniously took his own life was at one time “buried in the highway”, with a stake through his body; and his goods were “forfeited”. The burial of suicides lost its gruesome aspect in 1824 when the original mode was replaced by the practice of burial “between the hours of nine and twelve at night”, without any service. In 1870, the confiscation of the goods of suicides was put to an end in the general abolition of forfeitures for felony. And in 1882, the statute removed every penalty, except the purely ecclesiastical one that the interment must not be solemnised by a burial service in the full ordinary Anglican form, Kenny’s Outlines of Criminal Law, New ed. by J.W.C.,, Turner, p. 138.

16. Halsbury, in Halsbury’s Law of England, 4th ­ed. paras 42 to 44 notices some of the English decisions in the matter of classification of offence and complicity in the crime. Thus, a person who ‘”assists the perpetrator at the time of its commission, or if he assists or encourages the perpetrator before its commission, was held liable 1970 (2) Q.B. 54.” According to R.V. Gregory (1867) L.R.I. C.C.R. 77 “any person who aids, counsel or procures the commission of an offence, whether an offence at common law or by statute, and whether indictable or summary, is liable to be tried and punished as a principal offender.” Mere presence at the commission of the crime is not enough to create criminal liability, nor is it enough that a person is present with a secret intention to assist the principal should assistance be required. Some encouragement or assistance must have been given to the principal either before or at the time of the commission of the crime with the intention of furthering its commission. Presence without more may, however, afford some evidence of aid and encouragement. It is an indictable offence at common law for a person to incite or solicit another to commit an offence. For an incitement to be complete, there must be some form of actual communication with a person whom it is intended to incite, where, however, a communication is sent with a view to incite, but does not reach the intended recipient the sender may be guilty of an attempt to incite. Incitement is complete though the mind of the person incited is unaffected and notwithstanding that person incited intends to inform on the inciter ; but there can be no incitement unless one person seeks to persuade or encourage another Halsbury’s Laws of England, Paras 42 to 44.

17. It may be useful to notice some of the Indian decisions on the question of abetment. Among the early cases of abetment of suicide arose out of unfortunate incidents of Sati, which was common in India, at one time. A person who induced the woman to return to the pyre after she had once retired from it, and immolated herself, was held to have abetted suicide 1863 (1) R.L.P.J. 174. Where a women prepared to commit suicide in the presence of certain persons who followed her to the pyre, stood by her and one of them told the women to say ‘Ram Ram’ and “She would became sati”, the facts were held sufficient to prove the active connivance of these persons and to justify the inference that they had engaged with her in a conspiracy to commit suicide 1871 (3) N.W.P. 316; (1933) A.L.J.R. 7. Where the accused prepared the funeral pyre, placed the victim’s husband’s body over it, and did not use any force to prevent her from sitting on the pyre and supplied her with ghee which she poured over the pyre were found guilty of abetment of suicide. Where a Hindu women was burnt in the act of becoming sati, those who assisted her in taking off her ornaments, supervised the cutting of her nails and the dying of her feet, prepared the pyre on which she sat herself and put the corpse upon the pyre, were all held guilty of abetment of suicide. The defence that the abettors were in fact “expecting a miracle and did not anticipate that the pyre would be ignited by human agency was rejected, 1928 (8) Pat. 74. Similarly, where the accused, who were members of a crowd, who had joined the funeral procession from the house of the victim to the cremation ground, and were shouting “Sati Mata Ki Jai” it was held that all those persons, who joined the procession were aiding the widow in becoming sati and were guilty of an offence under Section 306 of the Penal Code, 1958 Cr. L J. 967, 1958 Raj. 143.

18. Some later decisions arising out of other instances of instigation throw further light on the question. In the case of Parimal Chatterjee and others A.l.R 1932 Cal. 760, a Division Bench of the Calcutta High Court observed that the word “instigate” literally means to goad or urge forward or to provoke, incite, urge or encourage to do an act. A person may however not only instigate another, but he may co­operate with him and his Co­ operation ­ may consist of a conjoint action and that would amount to abetment. In the case of State of Bihar v. Ranen Nath and other A.I.R. 1958 Patna 259, a Division Bench of the Patna High Court was construing Section 27 of the Industrial Disputes Act which uses the expressions Instigation and incitement’ and observed that the words “should be read to signify something deeper than a mere asking of a person to do a particular act. There must be something in the nature of solicitation to constitute instigation or incitement” and it was held that the words seem to convey the meaning “to goad or urge forward or to provoke or encourage the doing of an act.” It was further observed that what acts should amount to instigation or incitement within the meaning of that section will depend upon the “particular facts of each case”, and that in some circumstances a “throw of a finger” or “a mere turning of the eye’ may give rise to an inference of either “incitement or instigation”, and yet in others even “strong words, expressly used, may not mean that the person using them was stimulating or suggesting to anyone to do a particular act.” The court expressed the view that there must be something “tangible” in evidence to show that the persons responsible for such action were “deliberately trying to stir up other persons to bring about a certain object”. According to a division bench of the Calcutta High Court, a person abets the doing of a thing when he or she, inter alia. “instigates any person to do that thing.” The other modes of abetment, besides instigation, are “conspiracy and intentional aid”. The word “instigation” literally means “to goad or urge forward to do an act.” “It is something more than co­operation.” In the case of Shri Ram and another, 1975 (2) S.C.R. 622, the Supreme Court observed that in order to constitute abetment, the abettor must be shown to have “intentionally” aided the commission of the crime. “Mere proof that the crime charged could not have been committed without the interposition of the alleged abetter is not enough compliance with the requirements of Section 107”. A person may, for example, “invite another casually or for a friendly purpose and that may facilitate the murder of the invitee”. But unless the invitation was extended “with intent to facilitate the commission of the murder”, the person inviting cannot be said to have abetted the murder. It is not enough that an act on the part of the alleged abettor “happens to facilitate the commission of the crime”. “Intentional aiding and therefore active complicity is the gist of the offence of abetment under the third paragraph of Section 107”.

19. In case of suicide how the evidence is required to be appreciated has been stated by the Hon’ble Supreme Court in number of judgments. In State of West Bengal v. Orilal Jaiswal, (1994) 1 SCC 73, the Hon’ble Supreme Court has cautioned that the Court should be extremely careful in assessing the facts and circumstances of each case and the evidence adduced in the trial for the purpose of finding whether the cruelty meted out to the victim had in fact induced her to end the life by committing suicide. If it appears to the court that a victim committing suicide was hypersensitive to ordinary petulance, discord and differences in domestic life quite common to the society to which the victim belonged and such petulance, discord and differences were not expected to induce a similarly circumstanced individual in a given society to commit suicide, the conscience of the court should not be satisfied for basing a finding that the accused charged of abetting the offence of suicide should be found guilty. Further the Hon’ble Supreme Court in case of Chitresh Kumar Chopra v. State (Govt. of NCT of Delhi), (2009) 16 SCC 605 had an occasion to deal with this aspect of abetment. The Court dealt with the dictionary meaning of the words “instigation” and “goading”. The Court opined that there should be intention to provoke, incite or encourage the doing of an act by the latter. Each person’s suicidability pattern is different from the other. Each person has his own idea of self esteem and self respect. Therefore, it is impossible to lay down any straitjacket formula in dealing with such cases. Each case has to be decided on the basis of its own facts and circumstances.

20. The Hon’ble Supreme Court in case of Amalendu Pal @ Jhantu vs. State of West Bengal, 2010 AIR(SC) 512, after considering various earlier judgments in para 15 observed that,

“15. Thus, this Court has consistently taken the view that before holding an accused guilty of an offence under Section 306 IPC, the Court must scrupulously examine the facts and circumstances of the case and also assess the evidence adduced before it in order to find out whether the cruelty and harassment meted out to the victim had left the victim with no other alternative but to put an end to her life. It is also to be borne in mind that in cases of alleged abetment of suicide there must be proof of direct or indirect acts of incitement to the commission of suicide. Merely on the allegation of harassment without their being any positive action proximate to the time of occurrence on the part of the accused which led or compelled the person to commit suicide, conviction in terms of Section 306 IPC is not sustainable.”

“16. In order to bring a case within the purview of Section 306 of IPC there must be a case of suicide and in the commission of the said offence, the person who is said to have abetted the commission of suicide must have played an active role by an act of instigation or by doing certain act to facilitate the commission of suicide. Therefore, the act of abetment by the person charged with the said offence must be proved and established by the prosecution before he could be convicted under Section 306 IPC.”

21. The Hon’ble Supreme Court in the case of Randhir Singh v. State of Punjab, (2004) 13 SCC 129 has reiterated the legal position as regards Section 306 IPC which is long settled in para 12 and 13. Para 12 and 13 reads thus :

“12. Abetment involves a mental process of instigation a person or intentionally aiding that person in doing of a thing. In cases of conspiracy also it would involve that mental process of entering into conspiracy for the doing of that thing. More active role which can be described as instigating or aiding the doing of a thing is required before a person can be said to be abetting the commission of offence under Section 306 IPC.

13. In State of W. B. v. Orilal Jaiswal this Court has observed that the courts should be extremely careful in assessing the facts and circumstances of each case and the evidence adduced in the trial for the purpose of finding whether the cruelty meted out to the victim had in fact induced her to end the life by committing suicide. If it transpires to the court that a victim committing suicide was hypersensitive or ordinary petulance, discord and differences in domestic life quite common to the society to which the victim belongs and such petulance, discord and differences were not expected to induce a similarly circumstances individual in a given society to commit suicide, the conscience of the court should not be satisfied for basing a finding that the accused charged of abetting the offence of suicide should be found guilty.”

22. In Gcngula Mohan Reddy v. State of A.P., (2010) 1 SCC 750 the Supreme Court while interpreting Section 306 IPC held that:

“Abetment involves a mental process of instigating a person or intentionally aiding a person in doing of a thing and without a positive act on the part of the accused to instigate or aid in committing suicide, there cannot be any conviction. It was further held that to attract Section 306 IPC there has to be a clear mens tea to commit the offence.”

23. In Ramesh Kumar v. State of Chhattisgarh., (2001) 9 SCC 618. the Supreme Court held that “Instigation is to goad, urge forward, provoke, incite or encourage to do ‘an act’. To satisfy the requirement of instigation though it is not necessary that actual words must be used to that effect or what constitutes instigation must necessarily and specifically be suggestive of the consequence. Yet a reasonable certainty to incite the consequence must be capable of being spelt out. The present one is not a case where the accused had by his acts or omission or by a continued course of conduct created such circumstances that the deceased was left with no other option except to commit suicide in which case an instigation may have been inferred. A word uttered in the fit of anger or emotion without intending the consequences to actually follow cannot be said to be instigation.”

24. In Sanju alias Sanjay v. State of M.P., (2002) 5 SCC 371. the deceased committed suicide on 27.7.1998. whereas, the alleged quarrel had taken place on 25.7.1998 when it was alleged that the appellant had used abusive language and also told the deceased to go and die. The Supreme Court in the said circumstances held that the fact that the deceased committed suicide on 27.7.1998 would itself clearly point out that it was not the direct result of the quarrel taken place on 25.7.1998 when it is alleged that the appellant had used the abusive language and also told the deceased to go and die. http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com

25. Taking note of various earlier judgments, in M. Mohan u. State Represented the Deputy Superintendent of Police, (2011) 3 SCC 626. the Supreme Court held that “Abetment involves mental process of instigating or intentionally aiding a person in doing of a thing. There should be clear mens rea to commit offence under Section 306. It requires commission of direct or active act by accused which led deceased to commit suicide seeing no other option and such act must be intended to push victim into a position that he commits suicide.”

26. On a close reading of the above provisions of the IPC, and the principles laid down by the Supreme Court in various decisions, it is apparent that in a case under Section 306 IPC, there should be clear mens­ rea to commit the offence under this Section and there should be direct or active act by the accused, which led the deceased to commit suicide, that is to say that there must be some evidence of “instigation”, “cooperation” or “initial assistance” by the accused to commit suicide by the victim/deceased.

27. In Madhavrao Jiwajirao Scindia v. Sambhajirao Chandrajirao Angre, (1988) 1 SCC 692 the Supreme Court observed vide Para 7 that:

“7. The legal position is well settled that when a prosecution at the initial stage is asked to be quashed, the test to be applied by the court is as to whether the uncontroverted allegations as made prima facie establish the offence. It is also for the court to take into consideration any special features which appear in a particular case to consider whether it is expedient and in the interest of justice to permit a prosecution to continue. This is so on the basis that the court cannot be utilized for any oblique purpose and where in the opinion of the court chances of an ultimate conviction are bleak and, therefore, no useful purpose is likely to be served by allowing a criminal prosecution to continue, the court may while taking into consideration the special facts of a case also quash the proceeding even though it may be at a preliminary stage.”

It was a proposition relating to criminal prosecution.

28. In Madan Mohan Singh v. State of Gujarat, (2010) 8 SCC 628. the Supreme Court quashed the proceedings under Section 306 IPC on the ground that the allegations were irrelevant and baseless and observed that the High Court was in error in not quashing the proceedings.”

19 I am conscious of the fact that a young woman committed suicide leaving behind two minor children and one of those just 1 ½ years of age. Life must have been miserable for her, and probably, unable to bear the pain and misery, she might not have thought even for a minute about her minor children. However, when I need to decide the matter keeping in mind the law as well as the materials on record, I should not go by emotions. In my view, the applicants herein should not be put to trial for the offence punishable under Sections 306 as well as 498A of the Indian Penal Code.

Let me look into the decisions relied upon by Mr. Gadhvi, the learned counsel appearing for the first informant.

21 In the case of A.K. Chaudhary(supra), the learned Single Judge of this Court drew a fine distinction between two categories of incitement observing as under:

“17. In view of the above, it appears that the ingredients for abetment for suicide would be satisfied only if the suicide is committed by the deceased due to direct and alarming encouragement/incitement by the accused leaving no option but to commit suicide. Further, as the action of committing suicide is also on account of great disturbance to the psychological imbalance of the deceased such incitement can be divided into two broad categories, one normally where the deceased is having sentimental tie or physical relations with the accused and second category would be where the deceased is having relations with the accused in official capacity. In case of former category some times a normal quarrel or the utterance of hot exchange of words may result into psychological immediate imbalance. Consequently creating situation of depression, loss of charm in the life and if the person is unable to control sentiments of expectations, it may give temptations to the person to commit suicide, e.g., when there is relation of husband and wife, mother and son, brother and sister, sister and sister and other relations of such type, where sentimental tie is by blood or due to physical relations. In case of second category the tie is on account of official relations, where the expectations would to discharge the obligation as provided for such duty in law and to receive the considerations as provided in law. In normal circumstances, relationships by sentimental tie cannot be equated with the official relationship and the reason being the different conduct of the parties for maintenance of the relations. The former category leaves more expectations, whereas in the latter category, by and large, expectations and obligations are prescribed by law, rules and regulations. Of course, for meeting with the requirement for ingredients of abetment to suicide, the provisions of the IPC are the same, but for the purpose of examination on the aspects of abetment to commit suicide or incitement/encouragement to suicide, it may have some relevance. Since, in the present case this Court is not concerned with the matter of matter of abetment to suicide where the deceased or the accused had the relations covered in the first category, no further discussion may be required in this regard to that extent. However, in case where the allegations for abetment of suicide committed by the deceased falling in second category are concerned, the strict interpretation is called for, otherwise it may result into damaging the discipline of any institution or organization or department, which may consequently result into creating a situation against national interest for which the expectation would be the strict discipline and the rule of law only and nothing else.”

21.1 There need not be any debate on the proposition of law laid down by the learned Single Judge of this Court. However, as observed above, there is no cogent material to prima facie suggest incitement/instigation to suicide at the hands of the applicants. The aforenoted decision otherwise is not helpful to the first informant in any manner.

22 In the case of State of A.P. (supra), the Supreme Court explained that the powers possessed by the High Court under Section 482 of the Code of Criminal Procedure should be exercised sparingly and should not be exercised to stifle a legitimate prosecution. The Supreme Court observed in para 8 as under:

“8. As noted above, the powers possessed by the High Court under Section 482 of the Code are very wide and the very plenitude of the power requires great caution in its exercise. Court must be careful to see that its decision in exercise of this power is based on sound principles. The inherent power should not be exercised to stifle a legitimate prosecution.

High Court being the highest Court of a State should normally refrain from giving a prima facie decision in a case where the entire facts are incomplete and hazy, more so when the evidence has not been collected and produced before the Court and the issues involved, whether factual or legal, are of magnitude and cannot be seen in their true perspective without sufficient material. Of course, no hard and fast rule can be laid down in regard to cases in which the High Court will exercise its extraordinary jurisdiction of quashing the proceeding at any stage. It would not be proper for the High Court to analyse the case of the complainant in the light of all probabilities in order to determine whether a conviction would be sustainable and on such premises, arrive at a conclusion that the proceedings are to be quashed. It would be erroneous to assess the material before it and conclude that the complaint cannot be proceeded with. In proceeding instituted on complaint, exercise of the inherent powers to quash the proceedings is called for only in a case where the complaint does not disclose any offence or is frivolous, vexatious or oppressive.If the allegations set out in the complaint do not constitute the offence of which cognizance has been taken by the Magistrate, it is open to the High Court to quash the same in exercise of the inherent powers under Section 482 of the Code. It is not, however, necessary that there should be meticulous analysis of the case before the trial to find out whether the case would end in conviction or acquittal. The complaint/F.I.R. has to be read as a whole.If it appears that on consideration of the allegations in the light of the statement made on oath of the complainant or disclosed in the F.I.R. that the ingredients of the offence of offences are disclosed and there is no material to show that the complaint/F.I.R. is mala fide, frivolous or vexatious, in that event there would be no justification for interference by the High Court. When an information is lodged at the police station and an offence is registered, then the mala fides of the informant would be of secondary importance. It is the material collected during the investigation and evidence led in Court which decides the fate of the accused person. The allegations of mala fides against the informant are of no consequence and cannot by itself be the basis for quashing the proceeding.”

23 The case in hand so far as the applicants herein is concerned is one in which the powers under Section 482 of the Code deserves to be exercised having regard to the nature of the accusations and the materials on record.

24 In Chitresh kumar (supra), the Supreme Court has explained the offense of “abetment of suicide” punishable under Section 306 of the Indian Penal Code in reference to Section 107 of the Indian Penal Code.

The Supreme Court also explained the meaning of the words “instigation” and “goad”. In this case, the deceased was a partner with the accused persons and they were all engaged in the real estate business. The deceased committed suicide on account of the problems created by those three persons. The deceased left behind a suicide note which mentioned that there was some money transaction between them and thus, three persons had abetted the deceased to commit suicide. The Supreme Court observed in paras 20, 21, 22, 23, 24 and 25 as under:

“20. In the background of this legal position, we may advert to the case at hand. The question as to what is the cause of a suicide has no easy answers because suicidal ideation and behaviours in human beings are complex and multifaceted. Different individuals in the same situation react and behave differently because of the personal meaning they add to each event, thus accounting for individual vulnerability to suicide. Each individual’s suicidability pattern depends on his inner subjective experience of mental pain, fear and loss of self­respect. Each of these factors are crucial and exacerbating contributor to an individual’s vulnerability to end his own life, which may either be an attempt for self­protection or an escapism from intolerable self.

21. In the present case, the charge against the appellant is that he along with other two accused “in furtherance of common intention”, mentally tortured Jitendra Sharma (the deceased) and abetted him to commit suicide by the said act of mental torture. It is trite that words uttered on the spur of the moment or in a quarrel, without something more cannot be taken to have been uttered with mens rea . The onus is on the prosecution to show the circumstances which compelled the deceased to take an extreme step to bring an end to his life.

22. In the present case, apart from the suicide note, extracted above, statements recorded by the police during the course of investigation, tend to show that on account of business transactions with the accused, including the appellant herein, the deceased was put under tremendous pressure to do something which he was perhaps not willing to do. Prima facie, it appears that the conduct of the appellant and his accomplices was such that the deceased was left with no other option except to end his life and, therefore, clause firstly of Section 107 of the IPC was attracted.

23. Briefly dealing with the material available on record, in the order directing framing of charge against the appellant, the learned trial court has observed as under :

“In the present case the evidence shows threatening given to the deceased. One witness called Kartar Singh says that CK Chopra was heard saying to the deceased that the deceased had become dishonest because he was refusing to sign a paper in which the share in some joint property was shown to be 10%. On another occasion Chopra was heard by this witness to say that Chopra would ruin the deceased if he did not give up his claim for 25% and did not agree to accept 10%. Witness Padam Bahadur has stated inter alia that he overheard Jahoor and Mahavir telling the deceased that Chopra had asked them to say that this was the last opportunity to sign the document and that if he wanted to live in the society he should sign the agreement or should die by taking poison. Soon thereafter the deceased committed suicide.

Thus the evidence is not of a mere quarrel in which one person told the other go and die without actually suggesting that the opponent should commit suicide. In the present case the evidence collected by the investigation suggest that the deceased had been actually pushed to the wall and the escape by committing suicide was suggested by the accused persons.” http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com

24. In the light of the material on record, in our judgment, it cannot be said that the trial court was in error in drawing an inference that the appellant had “instigated” the deceased to commit suicide and, therefore, there was ground for presuming that the appellant has committed an offence punishable under Section 306 read with Section 34, IPC.

25. It is trite that at the stage of framing of charge, the court is required to evaluate the material and documents on record with a view to finding out if the facts emerging therefrom, taken at their face value, disclose the existence of all the ingredients constituting the alleged offence or offences. For this limited purpose, the court may sift the evidence as it cannot be expected even at the initial stage to accept as gospel truth all that the prosecution states. At this stage, the court has to consider the material only with a view to find out if there is ground for “presuming” that the accused has committed an offence and not for the purpose of arriving at the conclusion that it is not likely to lead to a conviction. (See: Niranjan Singh Karam Singh Punjabi and Ors. v. Jitendra Bhimraj Bijjaya.)”

24.1 Having regard to the materials on record including the suicide note naming the accused persons, the Supreme Court took the view that there was sufficient material to presume that the accused had committed the offence and if that be so, the charge can be framed. In the aforenoted case, the discharge application was rejected by the trial Court holding that a case for framing the charge against the accused persons had been made out. The Supreme Court concurred with the findings recorded by the trial Court. This decision also, in no manner, helpful to the prosecution.

25 In the case of A.M. Kapoor (supra), the Supreme Court took the view that framing of a charge is an exercise of jurisdiction by the trial Court in terms of Section 228 of the Cr.P.C., unless the accused is discharged under Section 227 of the Cr.P.C. The Supreme Court held that at the initial stage of framing of a charge, the Court is concerned not with the proof, but with a strong suspicion that the accused has committed an offence, which, if put to trial, could prove him guilty. All that the Court is to see that the material on record and the facts would be compatible with the innocence of the accused or not. The final test of guilt is not to be applied at that stage. The case in hand is one where the ingredient of sections concerned do not exist considering the facts of the case of the accusation.

26 In the case of the Government of National Capital Territory, Delhi (supra), the Supreme Court while upsetting the acquittal of the accused observed having regard to the facts of the case the trial Court ought to have drawn the presumption under Section 113­A of the Evidence Act. In this case, there was a suicide note left behind by the deceased showing beating of the deceased by her husband as a motive for suicide. This decision is also not helpful to the first informant.

27 For the foregoing reasons, this application succeeds and is hereby allowed. The further proceedings of the Criminal Case No.25819 of 2015 pending at the stage of committal in the Court of the 5th Additional Senior Civil Judge and Judicial Magistrate First Class, Surat, arising from the First Information Report bearing I­C.R. No.27 of 2015 registered with the Puna Police station, Surat for the offence punishable under Sections 306, 498A read with 114 of the Indian Penal Code is hereby ordered to be quashed. Direct service is permitted.

28 The case shall proceed further expeditiously so far as the other co­ accused are concerned in accordance with law.

(J.B.PARDIWALA, J.)

chandresh

Married ’94, fight since day1, 498A 406 323 324 34, hubby &parents arrestd, stil NO divorce in 2011. 17yrs of such life & still NO respite

Married in 1994, the couple seem to be fighting since very early days of matrimony. Wife leaves Matri home and also files multiple criminal cacses u/s 498A 406 323 324 34 of IPC. Hubby &parents are arrested and lodged in Tihar. Wife pursues other criminal cases as well. Stil NO divorce in 2011. 17yrs of such life & still NO respite

In this case couple seem to have been fighting since the very start of marriage. The wife had many complaints against the husband and also left him circa 1998. She filed multiple criminal cases as detailed below. the Husband and parents were arrested and lodged in Tihar Jail when wife was activly moving to deny bail and also filed revision when husband go out. She further filed assault etc cases on the husband and continued hounding him. Appreciating all this husband obtained divorce from lower court the Hon. HC sets aside the divorce.

Excerpts from the case :
“…In so far as the complaint made by the appellant under Section 498-A/406 IPC is concerned, the respondent, his parents and his brother were arrested. Counsel also stated that cancellation of bail of the brother of the appellant was sought by the appellant when he was yet to be released from Tihar Jail after the grant of bail to him by the Court vide order dated 18.12.1998. Counsel further submitted that the appellant went to the extent of assailing the dismissal of cancellation order by way of filing a revision petition before the Sessions Court. Counsel also submitted that the appellant has filed a criminal complaint against the respondent invoking the provisions of the Domestic Violence Act, besides filing a civil suit for recovery of the dowry articles. Counsel also submitted that for all these the respondent had proved on record various orders passed by the respective courts ….”

“…Counsel also submitted that the appellant has filed a criminal complaint against the respondent invoking the provisions of the Domestic Violence Act, besides filing a civil suit for recovery of the dowry articles. Counsel also submitted that for all these the respondent had proved on record various orders passed by the respective courts and also all these acts were committed by the appellant after 29.11.1998 from which date the parties have been living separately. Counsel also submitted that by filing a petition under Section 482 Cr.P.C. by the appellant challenging the order passed by the learned trial court on the application of the appellant moved by her under Section 319 Cr.P.C. would further show that the appellant was still chasing the respondent with the sole motive to harass him and to cause mental agony and tension to him. Counsel also submitted that the spate of criminal complaints filed by the appellant would clearly show that the offer made by her before the learned trial court as well as before this Court of joining back the company of the respondent was false and contrary to her conduct….”

The wife also make baseless character assasinations against the husband as follows “23. The learned trial court also returned yet another wrong finding in paragraph-22 of the impugned judgment by taking a view that the allegations leveled by the appellant in the petition filed under Section 18 of the Hindu Adoption and Maintenance Act attributing illicit relationship of the respondent with a concubine named Pinki resulted in causing cruelty to the appellant in the absence of any cogent evidence led by the appellant to prove the same before the Matrimonial Court. ….”

Actually in this case the wife is challenging the divorce because she doesn’t want the husband to give divorce :
“…By this appeal filed under Section 28 of the Hindu Marriage Act, 1955 the appellant (wife) seeks to challenge the judgment and decree dated 02.05.2009 whereby the petition filed by the respondent (husband) for divorce under Sections 13(1) (ia) and (ib) of the Hindu Marriage Act was allowed by the learned trial court in favour of the respondent (husband) ….”

…and In 2011, the hourable court decides that

“…. Thus, taking a panoramic view of the case at hand, this court is of the considered view that the learned trial court failed to appreciate the pleadings of the parties and the evidence adduced by them in support thereof including the applicable law both on the ground of cruelty and desertion in the right perspective. While adjudicating matrimonial cases, the courts have to be cautious and conscious of the fact that the holy bond of matrimony involves delicate human emotions and complex situations and often there gets created a chasm which if fortified by the court can lead to irredeemable destruction.

28. In the light of the aforesaid discussion, the present appeal is allowed and the impugned judgment and decree dated 02.05.2009 passed by the learned trial court is hereby set aside…….”

Meaning NO divorce in 2011 even !!

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

IN THE HIGH COURT OF DELHI AT NEW DELHI

Judgment reserved on: 06.01.2011

Judgment delivered on: 08.04.2011

MAT.APP.52/2009

Smt.Kavita ……Appellant Through: Mr.S.K.Bhalla, Adv.
Vs.
Shri Rakesh Raman ……Respondent. Through: Mr.V. K. Khurana, Adv.

CORAM:HON’BLE MR. JUSTICE KAILASH GAMBHIR

1. Whether the Reporters of local papers may Yes be allowed to see the judgment?
2. To be referred to Reporter or not? Yes
3. Whether the judgment should be reported Yes in the Digest?

KAILASH GAMBHIR, J.

1. By this appeal filed under Section 28 of the Hindu Marriage Act, 1955 the appellant seeks to challenge the judgment and decree dated 02.05.2009 whereby the petition filed by the respondent for divorce under Sections 13(1) (ia) and (ib) of the Hindu Marriage Act was allowed by the learned trial court in favour of the respondent and against the appellant.

2. Brief facts of the case relevant for deciding the present appeal are that the parties got married on 16.4.94 in Delhi according to Hindu rites and ceremonies. It is the case of the respondent husband that the appellant wife started harassing him on one pretext or the other like demand for a separate residence, getting her pregnancy aborted without the consent of the respondent, alleging that her life has been ruined by marrying a simple clerk and other such imputations. It was also the case of the respondent that the appellant used to leave the matrimonial home time and again and hassled by the conduct of the appellant, the respondent filed a petition for divorce on the ground of cruelty and desertion which vide judgment and decree dated 2.5.09 was granted in favour of the respondent. Feeling aggrieved with the same, the appellant has preferred the present appeal.

3. Assailing the finding of the learned trial court in para-15 of the impugned judgment, Mr.Bhalla, learned counsel for the appellant submitted that the civil suit referred to in the said para i.e. Ex.PW-1/A filed by the respondent for mandatory injunction was wrongly taken into consideration by the learned trial court as it was filed by the respondent just to create an evidence in his favour, as in the said suit the appellant was never served with the notice/summon and no evidence was produced by the respondent before the trial court to prove the fact that the appellant was served with the notice or had appeared in the matter. Assailing the finding of the learned trial court in para-16 of the impugned judgment, Mr.Bhalla stated that the order dated 11.06.2003 Ex.PW-1/C passed by the learned Magistrate in the criminal complaint filed by the appellant under Section 323/324/34 IPC is still under challenge before this Court in the petition under Section 482 Cr.P.C. filed by the appellant being challenging the order of the learned trial court dismissing the application moved by the appellant under Section 319 Cr.P.C. to seek re-trial of the respondent. Counsel, however, admitted the fact that the petition under Section 482 Cr.P.C. was filed by the appellant after the passing of the impugned judgment. Counsel also admitted that even the order of the learned Magistrate came to be passed after the passing of the impugned judgment. The contention of counsel for the appellant was that this order dated 11.06.2003 has not attained finality yet.

4. So far the institution of Kalandra Ex.PW-1/D dated 17.06.1999 by the appellant is concerned, as referred to in para-16 of the impugned judgment, counsel submitted that the appellant was well within her right to lodge/institute the Kalandara as the respondent, his father and brother came to the parental house of the appellant and committed the act of breach of peace and created a scene at that place, against which the police had taken action. Counsel thus submitted that the appellant-wife committed no wrong in lodging the said complaint against the respondent and the said accomplices. Counsel also submitted that the said kalandara proceedings were dropped by the Magistrate on 12.7.2000 on the technical ground that the Magistrate had failed to take a decision within the mandatory period of six months from the date of registration of the kalandara and therefore for the said dropping of the kalandara proceedings no fault can be attributed to the appellant. Counsel further submitted that the proceedings against the respondent and his family members are still pending trial under Section 498-A IPC in the court of Smt. Twinkle Wadhwan, M.M. and therefore even if the respondent and his family members were discharged under Section 406 of the IPC on 13.9.2000, the same would not have the effect of absolving them for the acts of cruelty committed by them. Counsel also submitted that simply because of the fact that there was acquittal of the respondent and his family members in a criminal case, that would not lead to the conclusion that an act of cruelty was committed by the appellant in getting the FIR registered against the respondent and his family members as it is the right given to a citizen under the law that whenever any criminal act is committed by the other party, to take recourse to filing of a compliant. Counsel also submitted that the learned trial court failed to appreciate the dictum of law laid down by this Court in Krishan Kumar Vs. Shankari II (2007) DMC 367, on the wrong analogy that filing of more criminal cases by the wife will amount to cruelty unlike in the case of Krishan Kumar (supra) where there was only one criminal case instituted by the wife against her husband.

5. Assailing the finding of the learned trial court in para 18 of the impugned judgment where it has held that the appellant said that her life was ruined by marrying a clerk and it caused cruelty to the respondent, the counsel submitted that the respondent failed to prove that any such utterances were made by the appellant. The contention of the counsel was that no independent witness was produced by the respondent to prove that any such allegation was leveled by the appellant against the respondent. Counsel also submitted that in the written statement, this allegation has been duly refuted by the appellant. Counsel also submitted that the learned trial court wrongly gave weightage to the evidence of the respondent while ignoring the evidence of the appellant. The contention of the counsel was that if there is an evidence of one party against the other party i.e. oath vs. oath then in the absence of any corroboration, the evidence of one party cannot be accepted over the other. Further assailing the correctness of the finding given by the learned trial court in para 19 of the impugned judgment, the counsel submitted that the learned trial court has not given the details of the documentary evidence in the said para based on which the court made the observation that it is not the quantity but the quality of the witnesses which is to be weighed. Counsel further submitted that the documentary evidence which was placed on record by the respondent was manipulated by him and the same was self serving evidence and therefore the learned trial court ought not to have placed any reliance on such manipulative and self serving documentary evidence placed on record by the respondent.

6. Counsel for the appellant further submitted that the respondent admittedly failed to pay the amount of maintenance as granted by the learned trial court despite the grant of decree under Section 18 of the Hindu Adoption and Maintenance Act but this fact was not considered by the learned trial court which fact would clearly prove that the respondent husband was trying to take advantage of his own wrongs and therefore he was not entitled to the grant of decree of divorce in terms of Section 23(1) of the Hindu Marriage Act. Counsel further submitted that the learned trial court in the said case under Section 18 of the Hindu Adoption and Maintenance Act vide judgment dated 31.10.2002 took a view that the appellant in that case was able to show in her evidence that the respondent had illicit relationship with another woman and which fact became a cause of irritation between the parties and due to which the appellant was forced to leave her matrimonial house. The contention of the counsel was that the said finding of the court in the Hindu Adoption & Maintenance Case has a binding effect in terms of Section 11 of CP.C and such an observation in the judgment in a case between the parties is also a relevant fact under Section 6 & 13 of the Indian Evidence Act. Counsel for the appellant in this regard invited attention of this court to paras 22, 33 & 34 of the judgment dated 31.10.2002 and submitted that perusal of the said paras would clearly reveal that the conduct of the respondent is out of bounds of the expected and reasonable conduct and based on the said observations of the court, he was not entitled to the grant of decree of divorce. Counsel further submitted that the appellant had also proved on record before the trial court that the respondent failed to pay the maintenance amount despite repeated applications moved by her before the concerned court in Section 18 proceedings and this deliberate act on the part of the respondent in not paying the maintenance amount even despite directions given by the maintenance court would clearly demonstrate the mala fide conduct of the respondent who wanted to pressurize the appellant to succumb to his dictates and to come under pressure to agree for divorce. Counsel also submitted that the appellant had placed on record the relevant order dated 15.04.2008 of the said court before the trial court by which direction for increase in the maintenance amount to Rs.4,000/- along with direction to clear the arrears of maintenance was given. Counsel also submitted that the judgment of the Apex Court cited by the appellant in the case of Hirachand Srinivas Managaonkar Vs. Sunanda (2001) 4 SCC 125 was ignored by the learned trial court where the Apex Court held that non-payment of maintenance would lead to striking off the defence of the petitioner seeking divorce. Counsel also submitted that a separate application was moved by the appellant before the trial court under Section 24 of the Hindu Marriage Act but no maintenance under the said provision was granted by the court in favour of the appellant on the ground that already an interim maintenance was allowed in her favour by the other court under Section 18 of the Hindu Adoption and Maintenance Act proceedings. Counsel also submitted that the appellant had also moved three applications for dismissal of the divorce petition filed by the respondent on account of persistent defaults committed by him in paying the maintenance amount under Section 18 proceedings. (1st application dated 19.04.07 at page 731, 2nd application dated 13.7.07 at page 739 and the 3rd application dated 7.05.08 at page 759). Counsel also submitted that the conduct of the respondent is apparently offending even before this court as he had not been timely paying the maintenance amount to the appellant.

7. Counsel further submitted that the appellant has always been ready and willing to join back the company of the respondent and this fact can be borne out from the orders dated 05.10.2004, 08.10.2004 and 10.11.2008 passed by the learned trial court. Counsel further submitted that even now also the appellant is prepared to forgive the respondent for his past misconduct and can join the company of the respondent.

8. Mr.Khurana, learned counsel appearing for the respondent opposing the present appeal submitted that a number of false and vexatious complaints were lodged by the appellant against the respondent and his family members with the sole object to unnecessarily harass them due to which the respondent and his family members had to appear before various authorities. In so far as the complaint made by the appellant under Section 498-A/406 IPC is concerned, the respondent, his parents and his brother were arrested. Counsel also stated that cancellation of bail of the brother of the appellant was sought by the appellant when he was yet to be released from Tihar Jail after the grant of bail to him by the Court vide order dated 18.12.1998. Counsel further submitted that the appellant went to the extent of assailing the dismissal of cancellation order by way of filing a revision petition before the Sessions Court. Counsel also submitted that the appellant has filed a criminal complaint against the respondent invoking the provisions of the Domestic Violence Act, besides filing a civil suit for recovery of the dowry articles. Counsel also submitted that for all these the respondent had proved on record various orders passed by the respective courts and also all these acts were committed by the appellant after 29.11.1998 from which date the parties have been living separately. Counsel also submitted that by filing a petition under Section 482 Cr.P.C. by the appellant challenging the order passed by the learned trial court on the application of the appellant moved by her under Section 319 Cr.P.C. would further show that the appellant was still chasing the respondent with the sole motive to harass him and to cause mental agony and tension to him. Counsel also submitted that the spate of criminal complaints filed by the appellant would clearly show that the offer made by her before the learned trial court as well as before this Court of joining back the company of the respondent was false and contrary to her conduct. Counsel for the respondent also submitted that the complaint lodged by the appellant which led to the registration of a Kalandara under Section 107/150 Cr.P.C. and proved on record as Ex.PW-1/D is based on entirely different facts than what has been represented by the counsel for the appellant before this Court. Counsel also submitted that with the lodging of all these complaints by the appellant the previous acts of cruelty committed by the appellant would also get revived in view of the settled legal position.

9. Counsel for the respondent further submitted that the appellant failed to cross-examine the respondent to refute the statement given by him in his examination-in-chief stating that the appellant used to taunt the respondent by saying that her life was ruined by marrying a clerk. Counsel thus stated that the learned trial court in para-18 of the impugned judgment has correctly observed that such taunts of the appellant caused cruelty to the respondent.

10. Explaining the conduct of the respondent on the aspect of maintenance, counsel submitted that no order under Section 24 of the Hindu Marriage Act was passed by the learned trial court and, therefore, the appellant could not have any grievance so far the non-payment of maintenance amount in the related proceedings filed by the appellant under Section 18 of the Hindu Adoption and Maintenance Act was concerned. Counsel for the respondent also submitted that the learned trial court in the execution proceedings had directed attachment of the salary of the respondent and the maintenance amount from the salary of the respondent has already been deducted. Counsel also submitted that the respondent has also cleared/paid the upto-date amount of maintenance to the appellant and, therefore, no fault can be found by this Court so far the payment of maintenance amount by the respondent is concerned. Counsel also submitted that all the three applications filed by the appellant before the learned trial court seeking dismissal of the case of the petitioner or striking off his defence were dismissed by the court and those orders were not challenged by the appellant and thus attained finality. Counsel thus stated that the respondent cannot be accused of not paying the maintenance amount to the appellant. Counsel also submitted that as per the deposition of RW-2, father of the appellant, he has admitted the fact that the appellant was getting the maintenance amount from the salary of the respondent as per the orders of the court.

11. Counsel for the respondent also submitted that the observation made by the learned trial court in para 22 in Section 18 proceedings judgment dated 31.10.2002 cannot have any binding effect and the said observations cannot be treated as final between the parties. The contention of the counsel for the respondent was that the principle of res judicata will not be attracted because the learned court in the said case was dealing with an entirely different subject matter, being concerned with the limited question of grant of maintenance to the appellant and any observation made by the learned trial court in the said order cannot be treated as res judicata between the parties. Counsel thus stated that in the impugned judgment, the learned trial court has correctly dealt with the issue on this aspect. Counsel also submitted that the appellant failed to prove any kind of illicit relationship of the respondent as alleged with a lady named Pinki in the present proceedings and therefore such serious allegations leveled by the appellant in itself amounts to causing cruelty upon the respondent husband.

12. I have heard learned counsel for the parties at considerable length and taken into consideration the contentions raised by them and have also gone through the records of the case.

13. The respondent-husband had filed a divorce petition on the ground of cruelty and desertion as envisaged under Section 13(1) (ia) and 13(1) (ib) of the Hindu Marriage Act, 1955 and his petition was allowed by the learned trial court on both the grounds vide judgment dated 2.5.2009.

14. So far the decree passed by the learned trial court on the ground of desertion is concerned, learned counsel for the respondent very fairly conceded to the fact that the impugned judgment cannot sustain on account of the fact that the respondent failed to prove on record the ground of desertion by satisfying the necessary ingredients of Section 13 (1) (ib) of the Hindu Marriage Act. It is a settled legal position that to claim a decree on the ground of desertion so far the deserting spouse is concerned, two essential conditions required to be proved are (i) factum of separation and (ii) intention to bring cohabitation permanently to an end (animus deserendi). Similarly, two ingredients are essential so far the deserted spouse is concerned i.e. (i) absence of consent and (ii) absence of conduct giving reasonable cause to the spouse leaving the matrimonial home to form the necessary intention aforesaid. The learned trial court has granted the decree of divorce on the ground of desertion in favour of the respondent only due to the fact that the appellant did not give any cogent ground to desert the respondent and thereafter of not returning back. The learned trial court failed to deliberate on issue No.2 in a proper perspective and has given the said finding in favour of the respondent without appreciating the said essentials required to be proved before granting a decree of divorce on the ground of desertion. It is a settled legal position that the onus is on the petitioner to not merely prove the factum of desertion on the part of the deserting spouse but also to establish the fact that the said desertion on the part of the deserting spouse is with a view to bring co-habitation permanently to an end. Mere fact that the appellant did not allow the respondent to enter in his own house on 29.11.1998 would not prove the fact that she had the intention to bring the cohabitation permanently to an end. Thus, the findings of the learned trial court on issue No.2 are clearly perverse and illegal and, therefore, the decree granted by the learned trial court on the ground of desertion is hereby set aside.

15. The other ground, on which the learned trial court has granted the decree of divorce in favour of the respondent and against the appellant is the ground of cruelty as envisaged under Section 13(1) (ia) of the Hindu Marriage Act. Before I deal with the rival submissions of learned counsel for both the parties, it would be desirable to decipher the foundation on which the learned trial court granted the said decree on the ground of cruelty in favour of the respondent and against the appellant. The learned trial court did not consider the allegations leveled by the respondent in paras 6,7,8,9 and 10 of the petition, as these paragraphs were found to be vague with no date, month and year of the incidents mentioned therein. The learned trial court also came to the conclusion that with the cohabitation of the parties till 29.11.1998 the respondent had condoned the acts of cruelty of the appellant-wife till the said date. The learned trial court then went on to examine the acts of cruelty committed by the appellant on or after 29.11.1998 and also revival of the previous acts of cruelty due to the said subsequent acts of cruelty committed by the appellant after 29.11.1998. The first act of cruelty committed by the appellant as per the finding of the learned trial court is that on 29.11.1998 the respondent was not allowed to enter his own house by the appellant which led to the filing of the civil suit for mandatory injunction on 01.12.1998 and such an act on the part of the appellant not permitting the respondent to enter in his own house has been treated as an act of cruelty on the part of the appellant. Filing of various complaints by the appellant and also her taking other legal remedies were also taken as cruel acts committed by the appellant towards the respondent. Filing of complaint by the appellant under Sections 323/324/34 IPC against the respondent, his parents and his brother on 17.03.1999; registration of a Kalandra under Section 107/150 Cr.P.C. on 17.6.99 at the instance of the appellant against the respondent, his brother and father; registration of an FIR at the instance of the appellant against the respondent and his family members under Sections 498A/406 IPC; filing of an application by the appellant to seek cancellation of bail of the brother of the appellant while he was still in custody and filing of a revision petition against the dismissal of such an application; all these acts of filing of complaints and registration of cases by the appellant were treated by the learned trial court as serious acts of cruelty perpetrated by the appellant. The learned trial court also held that such acts of cruelty committed by the appellant also revived the previous acts of cruelty committed by her. The learned trial court also distinguished the judgment of this Court in Krishan Kumar Vs. Shankri II (2007) DMC 367 Delhi on the analogy that in the said case there was only one criminal proceeding while in the present case there were many such cases filed by the appellant and also the fact that in the former case the revision petition against the order of discharge was allowed by the Sessions Court and in the facts of the present case no such revision was filed by the appellant. The learned trial court also found that the taunt of the appellant that her life was ruined by her family by marrying her with a clerk was an act of cruelty committed by the respondent. The aforesaid findings formed the genesis to grant the decree of divorce by the learned trial court on the ground of cruelty in favour of the respondent and against the appellant.

16. Institution of criminal case/cases by a wife against her husband and other family members of the husband would by itself constitute cruelty or not is a subject matter of discussion in various decisions of this High Court and various other Courts. It is also a matter of discussion whether such criminal proceedings if result into an acquittal, then, whether such acquittal by itself would prove cruelty or not. Criminal proceedings which are usually filed from the side of the wife in matrimonial proceedings are either under the provisions of Sections 498-A/406 of the Indian Penal Code or under the relevant provisions of the Domestic Violence Act. It cannot be denied that it is the legitimate right of the wife or of the husband to resort to various legal remedies as available to them under various statutes to seek rederessal of their grievances and to take necessary action against the culpability of other spouse and/or his/her family members. Mere resort to institution of criminal proceedings by either of the spouse thus cannot be taken to be an act of cruelty on the part of such a spouse. Filing of such criminal proceedings either can result in the discharge/acquittal or in conviction of one or the other members of the family of the spouse or the spouse himself/herself. Then there can be a challenge to such orders/judgments by the aggrieved party. The acquittal in the criminal proceedings can also take place due to several factors as before a criminal court the prosecution has to establish the case beyond reasonable doubt. Most of the criminal cases result into acquittal due to host of factors such as the witnesses turning hostile or due to the non-availability of the eye-witness or due to inefficient handling of the investigation by the Investigating Officer of the case and for various other factors. In matrimonial offences, the acquittal rate is comparatively higher because usually no outsider is a witness to various disputes and in-fighting between the husband and wife and their respective family members generally happens within the four walls of the matrimonial home. In this backdrop it would be difficult to accept the proposition that filing of criminal cases by the wife or even the criminal cases resulting into acquittal by itself would constitute cruelty on the part of such spouse.

17. Undoubtedly, in the facts of the present case, a number of criminal cases were filed by the appellant, but merely because of number of cases filed by the appellant are more therefore, this factor of quantity of more cases should go against the appellant. The pivotal question should be that in what circumstances the appellant had filed such cases and whether the given background afforded any justifiable reason to the appellant to file such cases or not and if it is found that filing of such cases is on absolutely false and baseless grounds tainted with ulterior motives, then certainly it can be held that filing of such criminal cases would constitute cruelty on the part of such spouse.

18. FIR No.379/1998 was registered at the instance of the appellant under Sections 498-A/406 IPC against the respondent and his family members based on the allegations levelled by the appellant that the respondent and his family members refused to return the jewellery and other dowry articles and also she was being subjected to harassment on account of insufficient dowry and also because of the further dowry demands. DD No.57 A was lodged by the appellant as she complained that on 16.02.1998 the respondent along with his parents and his brother Ravinder Singh had assaulted her and in fact inflicted injuries on her. The appellant even got herself medically examined with the help of her sister-in-law (bhabhi) at Anand Parbat Dispensary on 19.02.1998. A complaint case under Sections 323/324/34 IPC was filed by the appellant and the said complaint was based on the reported incident of assault by the respondent and his family members on 16.02.1998 and the incident relating to the alleged attempt of the accused persons named therein to kill the appellant on 29.09.1998. The said complaint filed by the appellant was supported with the MLC prepared by the Doctors of Ram Manohar Lohia Hospital wherein the injury suffered by the appellant was diagnosed as a ‘blunt injury’ upon the abdomen. The learned Metropolitan Magistrate, however, directed framing of charges against the accused persons only under Sections 323/34 IPC after finding that the nature of injury opined by the doctor was simple and the weapon used by the accused persons in the commission of the alleged offence was opined as ‘blunt’. The final order passed by the learned Metropolitan Magistrate vide order dated 11.06.2003 in the matter relating to FIR No.306/2000 directing discharge of accused persons under Sections 323/34 IPC which was challenged by the appellant by moving an application under Section 319 Cr.P.C. which was dismissed and was further challenged by the appellant under Section 482 Cr.P.C. and is pending consideration before this court. The appellant has also given due explanation for the registration of Kalandra against the accused persons vide Ex.PW-1/D as the respondent, his father and brother allegedly came to the parental house of the appellant where they had made an attempt to breach the peace of the appellant and also created an ugly scene warranting action against them.

19. The dictum of law as laid down by this court in the case of Krishan Kumar (supra) and Harish Chander Drall vs. Suresh Wati II (2007) DMC 450 is that the mere fact that the criminal proceedings have been instituted by one spouse against the other the same would not constitute cruelty by itself, even if such criminal proceedings end up in acquittal. It would also be pertinent to refer to the recent judgment of the Madras High Court in the case of Jayakumari vs. Balachander 2010(TLS) 1243604 where it has been held that:

“30. The term ‘cruelty’ consists of unwarranted and unjustifiable conduct on the part of defendant causing other spouse to endure suffering and distress thereby destroying peace of mind and making living with such spouse unbearable, completely destroying real purpose and object of matrimony. It would of course be difficult to define the expression “cruelty’. There cannot be any hard and fast rule in interpreting the same. As pointed out, the word “cruelty” cannot be put in a strait-jacket of judicial definition. It must be judged on the facts of each case having regard to the surrounding circumstances. Whether one spouse is guilty of cruelty is essentially a question of fact and previously decided cases have little, if any, value. The term ‘cruelty’ is not defined in the Act. It is to be judged by taking into consideration the status of life, the standard of living, the family background and the society in which the parties are accustomed to move because particular behaviour may amount to cruelty in one set of circumstances and may not be so in other set of circumstances. Observing that merely because criminal proceedings under Sec.498A IPC initiated by wife against her husband and his parents ended in acquittal and it cannot be treated as an instance which goes infavour of the husband to substantiate the plea of cruelty, in AIR 2006 AP 269 [Chiranjeevi v. Lavanya], the Division Bench of Andhra Pradesh High Court held as follows:-

“22. Much arguments have been advanced by the learned counsel appearing for the appellant-husband and his parents that a criminal case on a full fledged trial is an incident which constitutes cruelty on the part of the respondent-wife who initiated criminal proceedings. We have gone through the judgment, which has been marked as Ex.B-6. The criminal case ended in acquittal on the ground that the prosecution failed to prove the case against the accused beyond all reasonable doubt. The acquittal of the case is not on the ground of no evidence. It is settled law that nature of evidence required in a criminal case is of different standards and the same standards and proof is not required in civil proceedings. Therefore, mere acquittal of the appellant-husband and his parents in criminal case cannot be treated as instance which goes in favour of the appellant-accused to substantiate the plea of cruelty, on which a decree of divorce has been sought for.”

33. Similar view was taken in AIR 2007 (NOC) 2205 (Del.) [Vishnu Dutt Sharma v. Manju Sharma].

34. The trial Court took the view that accusations and allegations of dowry harassment amounts to cruelty. In our considered view the approach of the trial Court is erroneous and cannot be endorsed with. While considering the accusations, regard must be had to the context in which they are made. When there was demand of dowry and ill- treatment, on that account necessarily Respondent has to lodge a complaint. If that is to be taken as cruelty, it would amount to allowing the Petitioner to take advantage of his own wrong. As per Sec.23(a) for granting any relief under the Hindu Marriage Act, the party should not be allowed to take advantage of own wrong.” (emphasis supplied)

Therefore, as per the settled position of law ,looking into the background of the aforementioned criminal cases filed by the appellant, it is difficult to accept the argument of the counsel for the respondent that the same were filed by the appellant just with a view to harass the respondent and the same were without any basis. This Court, therefore, does not find any merit in the reasoning given by the learned trial court that since there were more criminal cases filed by the appellant, therefore, filing of such criminal cases would constitute cruelty to the respondent.

20. The concept of cruelty is of very wide amplitude and has not been defined in the Act and rightly so as it is not possible to put it down in a strait jacket formula. However, the benchmark evolved through judicial pronouncements is that the conscience of the court should be satisfied that it is not possible for the parties to live together without mental agony and pain anymore. But the conduct complained of should be such that there is a reasonable apprehension in the mind of the complaining party that there is danger to limb or life or mental health in living together. The conduct should be something much more than the ordinary wear and tear of married life and should touch a certain pitch of severity. What may be cruelty in one case may not be cruelty in the other case and each case has to be seen from the prism of its own peculiar fact situation. Here it would be useful to refer to the judgment of the Apex Court in the case of Samar Ghosh vs. Jaya Ghosh (2007) 4 SCC 511 where the Apex Court after analyzing the entire law on the aspect of mental cruelty gave a treatise enlisting non exhaustive situations which can be treated as mental cruelty, out of which the following extract reproduced seems germane in the present context: “On proper analysis and scrutiny of the judgments of this Court and other Courts, we have come to the definite conclusion that there cannot be any comprehensive definition of the concept of ‘mental cruelty’ within which all kinds of cases of mental cruelty can be covered. No court in our considered view should even attempt to give a comprehensive definition of mental cruelty.

73. Human mind is extremely complex and human behavior is equally complicated. Similarly human ingenuity has no bound, therefore, to assimilate the entire human behavior in one definition is almost impossible. What is cruelty in one case may not amount to cruelty in other case. The concept of cruelty differs from person to person depending upon his upbringing, level of sensitivity, educational, family and cultural background, financial position, social status, customs, traditions, religious beliefs, human values and their value system. Apart from this, the concept of mental cruelty cannot remain static; it is bound to change with the passage of time, impact of modern culture through print and electronic media and value system etc. etc. What may be mental cruelty now may not remain a mental cruelty after a passage of time or vice versa. There can never be any strait-jacket formula or fixed parameters for determining mental cruelty in matrimonial matters. The prudent and appropriate way to adjudicate the case would be to evaluate it on its peculiar facts and circumstances while taking aforementioned factors in consideration.

74. No uniform standard can ever be laid down for guidance, yet we deem it appropriate to enumerate some instances of human behavior which may be relevant in dealing with the cases of ‘mental cruelty’. The instances indicated in the succeeding paragraphs are only illustrative and not exhaustive.

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

(ii) On comprehensive appraisal of the entire matrimonial life of the parties, it becomes abundantly clear that situation is such that the wronged party cannot reasonably be asked to put up with such conduct and continue to live with other party.

(iii) Mere coldness or lack of affection cannot amount to cruelty, frequent rudeness of language, petulance of manner, indifference and neglect may reach such a degree that it makes the married life for the other spouse absolutely intolerable.

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

(v) A sustained course of abusive and humiliating treatment calculated to torture, discommode or render miserable life of the spouse. (vi) Sustained unjustifiable conduct and behavior of one spouse actually affecting physical and mental health of the other spouse. The treatment complained of and the resultant danger or apprehension must be very grave, substantial and weighty.

(vii) Sustained reprehensible conduct, studied neglect, indifference or total departure from the normal standard of conjugal kindness causing injury to mental health or deriving sadistic pleasure can also amount to mental cruelty.

(viii) The conduct must be much more than jealousy, selfishness, possessiveness, which causes unhappiness and dissatisfaction and emotional upset may not be a ground for grant of divorce on the ground of mental cruelty.

(ix) Mere trivial irritations, quarrels, normal wear and tear of the married life which happens in day to day life would not be adequate for grant of divorce on the ground of mental cruelty.

(x) The married life should be reviewed as a whole and a few isolated instances over a period of years will not amount to cruelty. The ill- conduct must be persistent for a fairly lengthy period, where the relationship has deteriorated to an extent that because of the acts and behavior of a spouse, the wronged party finds it extremely difficult to live with the other party any longer, may amount to mental cruelty.

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

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

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

(xiv) Where there has been a long period of continuous separation, it may fairly be concluded that the matrimonial bond is beyond repair. The marriage becomes a fiction though supported by a legal tie. By refusing to sever that tie, the law in such cases, does not serve the sanctity of marriage; on the contrary, it shows scant regard for the feelings and emotions of the parties. In such like situations, it may lead to mental cruelty.”

Thus while appreciating the law as settled by the Apex court in the above, alongwith a catena of other judgments the present case has to be evaluated. The filing of criminal cases will not amount to mental cruelty as already discussed above, but the other acts alleged to have caused mental cruelty or not have to be analysed.

21. The prime ground which impressed the learned trial court to treat it as an act of cruelty was that the appellant did not allow the respondent to enter his own house on 29.11.1998 when he had returned from his office. This finding was given by the learned trial court primarily by getting influenced from the fact that due to his alleged ouster from his own house on 29.11.1998 the respondent had to file a civil suit for mandatory injunction in which the respondent also made a statement to the effect that he got his belongings back with the help of the police. This finding of the learned trial court is clearly perverse as the learned trial court did not appreciate the fact that the appellant was never served with any notice/summon in the said case and, therefore, the appellant had no opportunity to rebut the averments made by the respondent in the said civil suit. Filing of the civil suit and its withdrawal by the respondent could not have been taken as adverse against the appellant to believe that the respondent was actually ousted by the appellant from the matrimonial house.

22. So far the allegation of the respondent that the appellant used to say that her family had ruined her life by marrying her with a clerk and the same constituted as an act of cruelty, this Court is of the view that such a circumstance by itself cannot be taken as a grave act on the part of the appellant to entitle the respondent to claim a decree of divorce on the alleged assertion of the appellant. Even otherwise, no evidence was led by the respondent to show that in whose presence such an accusation was made by the appellant.

23. The learned trial court also returned yet another wrong finding in paragraph-22 of the impugned judgment by taking a view that the allegations leveled by the appellant in the petition filed under Section 18 of the Hindu Adoption and Maintenance Act attributing illicit relationship of the respondent with a concubine named Pinki resulted in causing cruelty to the appellant in the absence of any cogent evidence led by the appellant to prove the same before the Matrimonial Court. It is no doubt a settled legal position that leveling of false, baseless and defamatory allegations by one spouse against the other regarding illicit relations would constitute an act of cruelty on the part of such spouse but that is not the case here as the respondent neither in his petition nor in his evidence made any such grievance that such allegations leveled by the appellant in Section 18 proceedings caused cruelty to him. The observations made by the Court in the judgment dated 31.11.2002 in Section 18 proceedings observing that the respondent had illicit relationship with another woman, which became a further cause of irritation to the appellant could not be taken adverse against the appellant, if not favourable to her. Although I do not agree with the argument of the counsel for the appellant that the said observation of the Civil Court in the said judgment under Section 18 of the Hindu Adoption and Maintenance Act will operate as res judicata but at the same time the finding of the learned Trial Court to hold such an observation against the appellant is equally unacceptable.

24. Mental cruelty indeed is not as easy to establish as physical cruelty but the impact of the alleged cruel incidents on the mind of the complaining spouse has to be deliberated upon. However an isolated or stray incident, an angry look, a random quarrel, a sugar coated insult or a taunt cannot lead the court to grant a decree of divorce. The question that needs to be addressed is that whether the cruelty alleged is antithetic to love and affection, the two basic pillars of matrimony and whether it has poisoned and polluted the bond of conjugal kindness to such an extent that marriage itself has become a Damocles’ sword for the parties? In the present case, the constant harping of the respondent of the torture and mental agony caused by the institution of criminal proceedings cannot be amplified to strain the matrimonial chord to the extent that it is broken down. The other acts alleged, are the unuttered flutters of married life and hence cannot be given the sanction of cruelty as envisaged under section 13(1) (ia) of the Hindu Marriage Act.

25. Now dealing with the argument of the counsel for the appellant that the respondent was not entitled to the grant of the decree of divorce as by his persistent default in the payment of the interim maintenance the grant of decree in favour of the respondent would be against the principles of law envisaged under Section 23(1) of the Hindu Marriage Act. Counsel for the respondent, on the other hand, contended that no order under Section 24 of the Act was passed by the learned trial court and, therefore, there was no default on his part in the payment of any maintenance amount so far the matrimonial proceedings were concerned. The contention of the counsel for the respondent was that non-payment of any interim maintenance in the related proceedings would not defeat the right of the respondent, if otherwise he had sufficiently proved on record his case, based on which the decree of divorce was sought by the respondent.

26. It is not in dispute between the parties that no order under Section 24 of the Hindu Marriage Act was passed by the learned trial court. It is also not in dispute that the said order was not passed by the learned trial court considering the fact that a similar order for the grant of maintenance was passed by the civil court in a related matter filed by the appellant under Section 18 of the Hindu Maintenance and Adoption Act. It is also not in dispute that the respondent- husband was a persistent defaulter in the payment of the said maintenance amount which led the appellant to move applications before the learned trial court to seek striking off of the defence of the respondent. Although the said applications filed by the appellant were dismissed by the learned trial court taking into account the fact that since no order for maintenance was granted by the matrimonial court under Section 24 therefore, the defence of the respondent could not be struck off. There was no justification on the part of the respondent not to pay the maintenance amount as order under Section 24 of the HMA was not passed by the Maintenance Court only because the Civil Court has passed a similar order in Section 18 proceedings. Grant of interim maintenance during the pendency of the proceedings has been recognized as an indefeasible right of the non-earning spouse and the non-payment of the same by the earning spouse that too for no justifiable reason, should have been viewed seriously by the Trial Court. The appellant had moved an application bearing C.M.No.7697/2009 under Section 24 of the Hindu Marriage Act to seek maintenance amount from the respondent @ Rs.6,000/- per month and this Court vide order dated 29.09.2010 gave direction to the respondent to pay the entire arrears of the maintenance amount at the first instance while revising the earlier maintenance amount from Rs.4,000/- to Rs.6,000/- per month. In compliance with the said directions given by this Court, the respondent had paid an amount of Rs.1,21,000/- to the appellant by way of two demand drafts and then again a sum of Rs.23,350/- by way of a cheque. Taking into account the aforesaid development, this Court is of the view that since the respondent has cleared the entire outstanding dues towards the arrears of the maintenance amount, so the argument of the counsel for the appellant of striking off the defence of the respondent would not be available to the appellant any more. I may also observe here that the appellant had also failed to challenge the orders passed by the learned trial court dismissing her applications seeking striking off of the defence of the respondent due to his failure to pay the maintenance amount and therefore the said plea would not be available to the appellant any more. It also cannot be lost sight of the fact that the appellant took independent remedy by filing an execution petition on account of the failure of the respondent to pay the arrears of the maintenance amount granted in her favour by the civil court in Section 18 proceedings. The Argument of learned counsel for the appellant that the learned Trial Court ought to have strike off the defence of the respondent due to the non- payment of the amount of interim maintenance will thus not sustain in the light of the above discussion.

27. Thus, taking a panoramic view of the case at hand, this court is of the considered view that the learned trial court failed to appreciate the pleadings of the parties and the evidence adduced by them in support thereof including the applicable law both on the ground of cruelty and desertion in the right perspective. While adjudicating matrimonial cases, the courts have to be cautious and conscious of the fact that the holy bond of matrimony involves delicate human emotions and complex situations and often there gets created a chasm which if fortified by the court can lead to irredeemable destruction.

28. In the light of the aforesaid discussion, the present appeal is allowed and the impugned judgment and decree dated 02.05.2009 passed by the learned trial court is hereby set aside.

April 08, 2011

KAILASH GAMBHIR,

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