Tag Archives: ipc498a

False & Vexatious 498a and Rape cases on in laws quashed. False 498a also quashed. MP HC

False & Vexatious 498a and Rape cases on in laws quashed. False 498a also quashed. MP HC

Husband files divorce claiming that wife was previously married to some one else and lived with him, hid that fact and remarried the current poor fella. Wife appears one time for the divorce and then promptly files 498a on husband approx 1.5 months later. In that 498a there are NO allegations of rape on in laws, but later wife improvises and also files fake Rape Cases on In laws. Husband also wins the 498a case on merits at Magistrate court. Now All fake cases are quashed by Hon HC. The Hon court sees thru the abuse of process of law.

dfd... - Madhya Pradesh High Court, Gwalior Bench Office Photo ...

HIGH COURT OF MADHYA PRADESH

BENCH AT GWALIOR

SINGLE BENCH

Cr.R.No.87/2017

(Manoj Dubey and Anr. Vs. State of M.P. and Anr.)

&

Cr.R.No.447/2017

(Pradumn Dubey and Anr. Vs. State of M.P. and Anr.)

——————————————————————————————–

Shri Amit Lahoti, learned counsel for the applicant.

Shri Aditya Singh, learned Public Prosecutor for the respondent/State.

Shri Sanjay Kumar Sharma, learned counsel for the complainant.

——————————————————————————————-

Present : Hon. Mr. Justice Anand Pathak

ORDER

{Passed on 12th day of May, 2020}

1. Since both the petitions carry same factual tenor and texture and subject matter is also same therefore, both these criminal revision petitions taken into consideration simultaneously and are decided by the common order. For convenience sake, facts of Cr.R.No.87/2017 are taken into consideration.

2. The instant criminal revisions have been preferred by the petitioners/accused against the order dated 10.01.2017 (in Cr.R.No.87/2017) and order dated 06.02.2017 (in Cr.R.No.447/2017) passed in Case No.208/2016 whereby in sum and substance the respective applications of petitioners under Section 227/228 of Cr.P.C. for discharge have been rejected.

3. The brief facts necessary for adjudication are that on 01.05.2014 marriage was solemnized between Pradumn Dubey (son of present petitioners) i.e. petitioner No.1 in Cr.R.No.447/2017 and respondent No.2 Smt. Richa Bhargawa as per Hindu rites and rituals at Guna. It appears that due to some domestic incompatibility, respondent No.2/wife started living at her parental home at Kolaras, District Shivpuri (M.P.) since 24.02.2015. The dispute between the couple could not be resolved, therefore, on alleged grounds of living adulterous life as well as cruelty committed by respondent No.2, then husband-Pradumn Dubey filed a divorce petition against the respondent No.2/wife on 05.04.2016.

4. In his petition, he levelled specific allegations about leading adulterous life and prior to marriage, conceiving from some other male and later on aborted. Husband levelled specific allegation against respondent No.2 of having relationship with one, Ashutosh Pandey. As per allegations, she lived with Ashutosh Pandey at his village Nohrikala as his wife for sometime and after dispute with him, she came back to her parental home and thereafter, marriage with Pradumn Dubey (petitioner No.1 of Cr.R.447/2017) solemnized. Later on, this fact came to the knowledge of husband through call details of her mobile as well as from other source. All details of leading adulterous life by respondent No.-2 have been narrated in divorce petition. Respondent No.2 contested the case and led her part of evidence.

5. After considering the rival submissions and evidence, Principal Judge, Family Court Guna vide judgment dated 06.09.2017 allowed the petition under Section 13 of Hindu Marriage Act filed by the petitioner-Pradumn Dubey and decree of divorce was issued and by way of divorce couple declared separate.

6. It is worthwhile to mention the fact that on 05.04.2016 divorce petition was filed and on 05.05.2016 wife caused her appearance in the Court and immediately thereafter, on 15.05.2016 she lodged FIR under Section 498-A of IPC and Section 3/4 of Dowry Prohibition Act, showing the dates of alleged offence between 01.05.2014 i.e. date of marriage to 12.10.2015, the date from which she started living separately. In the said FIR, there is not even a whisper in respect of allegation of committing attempt to rape and outraging her modesty by her brother-in-law -Rahul Dubey (Petitioner No.2 in Cr.R.447/2017).

7. On 23.06.2016, she lodged another FIR vide Crime No.327/2016 at Police Station Guna Kotwali for the offence under Sections 376 and 511 of IPC against all the petitioners for committing the offence of attempt to rape and outraging her modesty. In the said FIR, period of incident shown to be from 05.06.2014 to 28.02.2015. Perusal of FIR indicates the date of event as 05.06.2014 at Haridwar and thereafter, one more incident of attempt to rape by her brother-in-law -Rahul Dubey around one year back from the date of FIR.

8. Investigation carried out and charge-sheet submitted. Trial Court framed the charges against all the petitioners (except petitioner No.2 in Cr.R.No.447/2017) in respect of Sections 498-A, 376/109, 354/109 of IPC and brother-in-law -Rahul Dubey (petitioner No.2 of Cr.R.447/2017) was saddled with Sections 498-A, 376/511 and Section 354 of IPC .

9. Meanwhile, divorce petition filed by the husband-Pradumn Dubey was allowed vide judgment and decree dated 06.09.2017, in which this fact has been considered that respondent No.2 lodged a false FIR to the offence of attempt to rape to exert pressure over the petitioners.

10. Meanwhile on 26.09.2019 during the pendency of present petitions, first FIR lodged against all the petitioners under Section 498-A of IPC and Section 3/4 of Dowry Prohibition Act also resulted in acquittal of all the petitioners on merits and the said judgment dated 26.09.2019 is on record.

11. Therefore, through this revision petition, petitioners have challenged the rejection of application for discharge preferred by them under Sections 227/228 of Cr.P.C.. In Cr.R.No.447/2017, petitioners (husband and brother- in-law of respondent No.2-wife) also preferred revision against order dated 06.02.2017 whereby charge has been framed against the petitioners in respect of offence under Sections 498-A, 376/511 and Section 354 of IPC for Rahul Dubey and Section 498-A, 376/109 and 354/109 of IPC against Pradumn Dubey.

12. It is the submissions of counsel for the petitioners that it is factually clear that FIR of leveling allegations of attempt to rape and outrage her modesty are complete abuse of the process of Court and such process cannot be allowed for harassment. He relied upon the judgment rendered by the Hon’ble Apex Court in the case of State of Haryana Vs. Bhajanlal and Ors., AIR 1992 SC 604.

13. It is further submitted that after filing of divorce petition by the husband as counter blast, respondent No.2 lodged FIR under Section 498-A of IPC without mentioning therein any allegations of attempt to rape whereas she filed the said FIR on 15.05.2016 and at that point of time, if subsequent FIR is seen then it is clear that she referred the incident dated 05.06.2014 and the incident is of one year thereafter. Therefore, she could have narrated the said allegations in her first FIR filed under Section 498-A of IPC. It appears that when she realized that she is not getting sufficient material to harass the present petitioners only on the basis of offence under Section 498-A of IPC then she resorted to another FIR including the offence under Sections 376 and 354 of IPC, which is clear abuse of process of law and she cannot be permitted to start litigation at her whims on flimsy pretext and harass the petitioner till eternity. He referred the vagueness made by the prosecutrix in her written complaint, FIR and police statement/statement under Section 161 of Cr.P.C. He further submits that although this is revision petition but since this Court exercises the inherent jurisdiction under Section 482 of Cr.P.C., also then scope of revision is not limited. He relied upon the case of Rajiv Thapar & Ors vs Madan Lal Kapoor, 2013 (3) SCC 331 to submit that even in revisional jurisdiction if the injustice is caused then same can be taken care of. Here in the present case petitioners are constantly harassed by the wife. FIR is a delayed FIR and an afterthought.

14. Learned counsel for the respondent opposed the prayer and prayed for dismissal of petition.

15. Counsel for the complainant also raised the point regarding merits of the case and submits that trial Court would decide the case and allegations prima facie apparently exist and therefore, same needs to be tried through leading evidence.

16. Heard the learned counsel for the parties and perused the case dairy/documents.

17. In the present case, petitioners have filed the revision petitions in which one is against order of discharge and another is against order of framing charge. Scope of revision is not so limited as tried to be projected by the counsel for respondent because revisional Court can see the correctness, legality or propriety of any order passed as well as the regularity of any proceeding of any Court below.

18. Therefore, looking to the scope as provided in Section 397 and 401 of Cr.P.C., this Court has sufficient jurisdiction to look into correctness or propriety of any order passed by the Sessions Court. So far as present case is concerned, respondent No.2 lodged the FIR on 23.06.2016 by filing a written complaint. Contents of written complaint and FIR are almost identical. Later on, her police statement was taken on same day i.e. 23.06.2016 then also she repeated the allegations but next day in her statement under Section 164 of Cr.P.C. before the Magistrate, she made her statement only in one para and the same is reproduced as under for ready reference:-

19. Perusal of the said statement indicates that she referred the role of her brother-in-law-Rahul Dubey but she nowhere refers the role of her husband or her father and mother-in-law (petitioners of Cr.R.No.87/2017). The statement recorded just after one day i.e. 24.06.2016 therefore, it cannot be assumed that by the efflux of time, she forgot the details of incident. She tries to improve upon some contents qua Rahul Dubey which were not earlier lodged in the written complaint, FIR or police statement. Material contradictions and omissions exist in all her statements and contents of her written complaint as well as F.I.R. This shows her intention.

20. This fact has material bearing that after marriage (on 01.05.2014) her brother-in-law- Rahul Dubey started misbehaving with her and first incident is of dated 05.06.2014 one month after the date of marriage. Apparently such allegation comes under the doubt for the reason that if she was so upset by the advances of her brother-in-law then she should have immediately reported her family members, husband as well as father/mother-in-law or to the police. She left her matrimonial home on 24.02.2015 and the said fact reflected in the judgment and decree dated 06.09.2017 passed by the Principal Judge, Family Court, Guna. When she left her matrimonial home within 10 months of her marriage on 24.02.2015 and thereafter, if any advances were made by the brother-in-law -Rahul Dubey then she had one more opportunity to raise her voice and/or to mention the said fact in earlier FIR. The Police Station Kolaras District Shivpuri registered the case vide Crime No.204/2016 against all four petitioners of the instant case for alleged offence under Section 498-A of IPC and 3/4 of Dowry Prohibition Act on which trial was conducted before the JMFC Kolaras, District Shivpuri and vide judgment dated 26.09.2019 the said case resulted into acquittal of all the four petitioners/accused.

21. Reference of one compromise deed (Ex.P-3 of the said case) also finds place in judgment of the trial Court in which she accepted the fact that she was not allowed restrained by the petitioner/husband to go to the place of her brother-in-law (thtkth -Akhil) because her husband did not like the idea of going and staying for day’s together at her sister and brother-in-law’s place. In the said compromise deed dated 03.12.2014, she accepted that she wants to live happily with her matrimonial family and she would not be restrained by the family members/petitioners.

22. The facts of misbehavior by Rahul Dubey could have reflected in the settlement deed dated 03.12.2014 because as per the allegations, first incident of misbehavior by brother-in-law -Rahul Dubey was committed on 05.06.2014 at Haridwar therefore, on 03.12.2014, she could have referred this fact in compromise deed and could have ensured her modesty and chastity but same does not find place in the settlement deed or in the judgment dated 26.09.2019 passed by the JMFC, Kolaras. On this ground also, it appears that she filed the instant cases on false pretext just for harassment.

23. Interestingly, first FIR under Section 498-A of IPC was filed by the prosecutrix at Police Station Kolaras on 15.05.2016 and after one month she again filed an FIR with same allegations of dowry demand but with addition of Section 354 and 376 of IPC. Second FIR was filed at Police Station Guna Kotwali, District Guna. This shows the bend of mind and motive of respondent No.2 to keep harassing the petitioners on the pretext or the other. These facts create sufficient doubt about the actual disposition of respondent No.2 and her intention to wreak vengeance. Criminal law cannot be used as a tool for oppression, harassment and embarrassment to the common man. Here respondent No.2 tried to misuse the process of law for extending harassment to the petitioners. She knows that all petitioners are Government Teachers and their entanglement in criminal proceedings would cost them heavily. Therefore, she is enjoying peevish pleasure.

24. When divorce proceedings successfully pursued by the petitioner/husband Pradumn Dubey and when all four petitioners successfully contested the trial of Section 498-A of IPC then again relegating them back for the trial for same offence under Section 498-A of IPC would be travesty of justice because long drawn litigation itself is a type of punishment or at-least harassment to the common man which cannot be permitted in those cases where malice of complainant is apparent on record.

25. Even otherwise on merits, no allegations of attributes of Section 376 or 354 of IPC existed or reiterated by the complainant in her statement under Section 164 of Cr.P.C. qua other petitioners because allegations are only against Rahul Dubey but since the mens rea or ill-motive is apparent which is being established by the documents available on record, therefore, this Court cannot sit with blind eyes to allow the continuation of the abuse of process of law. Interestingly, her case suffers from delay and latches also because she could not explain delay and factual inconsistency in her complaint and statements.

26. In the case of Sh. Satish Mehra vs Delhi Administration & Anr. 1996 (9) SCC 766 the Hon’ble Apex Court has reiterated the scope of Section 227 of Cr.P.C. which is reproduced as under:- “15.But when the Judge is fairly certain that there is no prospect of the case ending in conviction the valuable time of the Court should not be wasted for holding a trial only for the purpose of formally completing the procedure to pronounce the conclusion on a future date. We are mindful that most of the Sessions Courts in India are under heavy pressure of work-load. If the Sessions Judge is almost certain that the trial would only be an exercise in futility or a sheer waste of time it is advisable to truncate or snip the proceedings at the stage of Section 227 of the Code itself.”

27. In the cumulative analysis and going through the judgment of the Apex Court in the case of Rajiv Thapar (Supra) and in the facts and circumstances of the case, this Court finds that it is case where interference would advance the cause of justice therefore, this Court intends to allow both the revisions filed by the petitioners.

28. Even otherwise, this Court does not find any ground to proceed further in the litigation and trial Court erred in rejecting the application under Section 227/228 of Cr.P.C. for discharge as well as erred in framing charge as per impugned order dated 10.01.2017 (in Cr.R.No.87/2017) and order dated 06.02.2017 (in Cr.R.No.447/2017) and both the impugned orders are hereby set-aside and no case for trial has been made out by the prosecution.

29. Resultantly, petitioners are discharged from the clutches of charges under Sections 498-A and 376/109, 354/109 of IPC and petitioner Rahul Dubey for the offence under Sections 498-A, 376/511 and Section 354 of IPC. They are set free.

30. E-copy/Certified copy, whichever is available, of this order be provided to the petitioners and E-copy of this order be sent to the trial Court concerned for compliance. It is made clear that E-copy of this order shall be treated as certified copy for practical purposes in respect of this order.

31. Both the revision petitions stand allowed and disposed of accordingly.

Ashish* (Anand Pathak)

Judge

ASHISH

CHAURASIA

2020.05.12

18:38:05

-07’00’

498a Dowry case on 11 year old brother Inlaw, married sis Inlaw, 74 year father Inlaw sheer abuse of law. Quashed. P&H HC

Fake case filing wife ropes in 3 in laws without any proper evidence or case against them. The court finds the case a sheer ABUSE of the process of law. Especially the court notes the following ” … Petitioner No.1 is the sister-in-law of the complainant, who got married on 04.02.1989 and has been residing in her matrimonial home since then and therefore, there is not even a remotest possibility that husband of the complainant was used to give beatings to her at the instance of petitioner No.1. Petitioner No.2 was born on 12.07.1979 and was 11 years of age in March, 1990 when the complainant alleged that she was given beatings by her husband at the instance of petitioner No.2. Moreover, he had left for Canada in March, 1996 and is residing there since then. Similarly, petitioner No.3 aged 74 years had left for Canada in 1996 and is residing there since then with petitioner No.2. In such an eventuality, it is hard to believe that petitioners had harassed the complainant as alleged in the complaint.It has become a common practice to use the provisions of Section 498- A IPC as a weapon rather than shield by disgruntled wives. The simplest way to harass is to get the relatives of the husband roped in under this provision, no matter they are bed ridden grand parents of the husband or the relatives living abroad for decades. The case in hand is also of similar nature..”

The sad saga borne out of Honorable COURT’s decree is given below

Punjab and Haryana High Court Dismisses Bail Plea of Man Accused ...

IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARYANA AT CHANDIGARH

CRM-M No.13517 of 2018

Date of Decision:15.05.2020

Amarjit Kaur and others ….Petitioners

versus

Jaswinder Kaur and another ….Respondents
CORAM:
HON’BLE MR. JUSTICE JAISHREE THAKUR
Present:
Mr. Bhrigu Dutt Sharma, Advocate for the petitioner.
Mr. Ish Puneet Singh, Advocate for respondent No.1.
Mr. Davinder Bir Singh, DAG, Punjab.


JAISHREE THAKUR. J

  1. This is a petition that has been filed under Section 482 Cr.P.C. seeking to quash Criminal Complaint No.31861/13 dated 06.09.2012 and the summoning order dated 06.12.2016 whereby petitioners herein have been summoned to face trial under Sections 498-A, 506, 120-B IPC and order dated 04.08.2017 declaring the petitioners as proclaimed offenders. Petitioners herein are the father-in-law, brother-in-law and sister-in-law of the respondent No.1 Jaswinder Kaur (hereinafter referred to as the complainant).
  2. In brief, the facts are that the abovesaid criminal complaint had been made by the complainant, who got married with Jaswant Singh on 05.08.1989. Jaswant Singh is none other than the real brother of petitioners No.1 and 2 and son of petitioner No.3. In the complaint it was averred that marriage was solemnized lavishly and a sum of `4 lakhs was spent thereon, apart from giving dowry articles, gold ornaments and other luxurious items. The complaint was made against the husband Jaswant Singh, Amarjit Kaur alleged to be second wife of Jaswant Singh, father-in-law Dilbagh Singh, mother-in-law Charan Kaur, brother-in-law Ranjit Singh and the sister-in-law Amarjit Kaur.
  3. It was further alleged that soon after the marriage, the accused persons named in the complaint started harassing the complainant on account of not bringing enough dowry and they raised a demand of Maruti 800 car along with an amount of `50,000/-. Though the complainant persuaded the accused persons with regard to inability of her parents to fulfill their demands, in the month of March, 1990, husband of the complainant at the instance of other accused gave her beatings and stated that she would have no place in the house if the demands are not fulfilled. Accused No.4 in the complaint i.e. mother-in-law of the complainant also raised a demand of gold ornament.
  4. On 24.07.1993, the complainant gave birth to a girl child namely Manjinder Kaur at Nawanshahar and entire expenses of the delivery were borne by parents of the complainant. It was alleged that after the birth of girl child, the mother-in-law raised a demand of `5 lakhs. The husband and petitioners herein along with mother-in-law taunted the complainant for not giving birth to a male child. In the year 2002, the complainant was turned out of the matrimonial home and at that point of time, her mother-in-law took all gold ornaments and other articles belonged to the complainant. It was further alleged that on 24.01.2008, husband of the complainant at the instance of his family members turned her out of matrimonial home and on 23.02.2008 also left the daughter with the complainant at Jalandhar and threatened her of dire consequences if she made a complaint against him. In this regard, the complainant made a complaint to SSP, Nawanshahr on 15.04.2008 but no action had been taken. In the month of September, 2009, severe blows were given in her stomach by accused No.1 i.e. the husband. She came to know that her husband solemnized a second marriage with one Amarjit Kaur (who was made accused No.2 in the complaint) without taking any divorce from her. She filed a petition under Section 125 Cr.P.C. and also an application under Section 12 of the Protection of Women from Domestic Violence Act, 2005. A complaint was also made by her to the Commissioner of Police on 5.76.2012 but no action had been taken.
  5. In support of her complaint, complainant stepped into witness box as CW1 and examined one Balkiat Singh as CW-2 and Piar Kaur as CW3, who reiterated the version of the complaint. She placed on record photographs of her husband with second wife as Ex.C3 to C5 and copies of petition filed under Section 9 of the Hindu Marriage Act against her and against his second wife as Ex.C6 and C7 respectively. The Judicial Magistrate 1st Class, Jalandhar on appreciation of material placed before it, vide order dated 25.03.2013 summoned the husband to face trial under Sections 406, 498-A, 506 and 494 IPC and the mother-in-law under Sections 406, 498-A and 506 IPC whereas the other accused persons were discharged including the petitioners herein.
  6. The aforementioned order was challenged by the complainant in revision before the Additional Sessions Judge, Jalandhar who vide order dated 02.02.2015 while noting the fact that there are specific allegations against accused No.3, 5 and 6 i.e. petitioners herein set aside the order passed by the Judicial Magistrate 1st Class, Jalandhar and directed to pass appropriate summoning order after re-considering the evidence placed before him.
  7. Since the revisional court set aside the order passed by the Judicial Magistrate, the complainant filed a petition before this Court to the extent that since the husband and mother-in-law did not challenge their summoning order, the revisional court gravely erred in setting aside the order in toto. This Court vide order dated 21.08.2015 clarified that the summoning order passed by the trial Court against husband Jaswant Singh and mother-in-law Charan Kaur will not be deemed to have been set aside.
  8. The trial Court on reconsideration of the evidence before it passed order dated 06.12.2016 whereby accused Nos.3, 5 and 6 i.e. petitioners herein have also been ordered to be summoned to face trial under Sections 498-A, 506 and 120-B IPC.
  9. Pursuant to the summoning order, notice were issued to the petitioners and since they did not put in appearance despite publication, they were declared as proclaimed offenders vide order dated 04.08.2017.
  10. Mr. Bhrigu Dutt Sharma, learned counsel appearing on behalf of the petitioners would submit that there is no specific allegation levelled against the petitioners in the complaint and therefore, the Judicial Magistrate vide order dated 25.03.2013 after appreciating the material placed before it gave a finding that no offence is made out against the petitioners herein and only summoned the husband and mother-in-law of the complainant to face trial under Sections 406, 498-A, 506 IPC. Even in the revision petition filed by the complainant against the aforementioned order, the revisional court failed to consider the fact that a right had been accrued in favour of the petitioner vide order dated 25.03.2013 passed by the Judicial Magistrate and therefore, an opportunity of hearing ought to have been given to the petitioners before setting aside the said order and gravely erred in remanding the matter back to the trial Court for reconsideration of the evidence. On remand, the trial Court failed to take into consideration that there is no specific allegation levelled against the petitioners in the complaint and in the absence of any specific allegation, a complaint is liable to be dismissed.
  11. He further contended that in pursuance to the summoning order dated 06.12.2016, summons issued to the petitioners were never served as the address of the petitioners given in the complaint by the complainant was incorrect as they were not residing at the said address at the relevant point of time. In support of his contention, he relied upon zimni orders dated 22.12.2016, 03.01.2017, 20.01.2017, 08.02.2017, 28.02.2017, 09.03.2017, 01.04.2017 and 24.04.2017 annexed with the petition as Annexure P-7 (colly). On the application moved by the complainant for effecting service upon the petitioners by way of substituted service, the trial Court vide order dated 24.04.2017 ordered the petitioners to be summoned by way publication. The proclamation published in the newspaper would show that petitioners No.2 and 3 were shown to be residents of Shaheed Bhagat Singh Nagar whereas they were actually residing in Canada since 1996 and the said fact was very well in the knowledge of the complainant. Moreover, petitioner No.1 was residing in her matrimonial home at Roper and therefore, was not aware of the pendency of the proceedings. The proclamation was published on 16.07.2017 and petitioners were required to be appeared before the trial Court on 17.07.2017 i.e. the very next day after the publication made in the newspaper. Even order dated 04.08.2017 declaring the petitioners as proclaimed persons has been passed before the expiry of 30 days of the publication of proclamation on 16.07.2017, which is in violation of the provisions of Section 82 (1) and 82 (4) of the Code of Criminal Procedure and therefore, is not sustainable in the eyes of law.
  12. Per contra, Mr. Ish Puneet Singh, learned counsel appearing on behalf of complainant-respondent No.1 supported the orders under challenge whereby petitioners have been ordered to be summoned to face trial and declared as proclaimed persons, while contending that the same have been passed on appreciation of material placed before the trial Court. The husband and the mother-in-law did not challenge the order whereby the husband had been ordered to face trial under Sections 406, 498-A, 506, 494 IPC and the mother-in-law under Sections 406, 498-A and 506 IPC. There are specific allegations levelled against the petitioners in para Nos.3, 5 and 6 of the complainant and therefore, they have rightly been summoned to face trial on the appreciation of evidence by the trial Court.
  13. I have heard learned counsel for the parties and have perused the paper book.
  14. It is the conceded position on record that in the first round of appreciation of evidence, the trial Court vide order dated 25.03.2013 gave a finding that no offence as levelled in the complaint is made out against the petitioners herein and summoned only husband and the mother-in-law to face trial. The complainant challenged the said order in revision petition and the revisional court remanded the matter to the trial court to pass a fresh order qua petitioners after re-appreciation of evidence. On re-appreciation of evidence, the trial court vide order dated 06.12.2016 summoned the petitioners to face trial under Sections 498-A, 506 and 120-B IPC and in pursuance to summoning order when the petitioners had failed to appear before it, the trial Court vide order dated 04.08.2017 declared them as proclaimed persons.
  15. It would be in the interest of justice to see at the first instance whether any offence is made out against the petitioners as per allegations levelled against them in the complaint or not? Because if the complaint fails, as a necessary corollary, all subsequent proceedings arising therefrom would automatically go. The allegations levelled against the petitioners in paras No.3, 5 and 6 of the complaint are reproduced as under:-
    “3.That on showing the incapability to arrange for Maruti 800 car and more dowry articles, in the month of March 1990, the accused No.1 at the instance of respondents No.3 to 6 started giving merciless beatings to the complainant…….
  16. That it is also not out of place to mention here that the accused No.1, 3 to 6 used to taunt the complainant for not giving birth to a male child……..
  17. That on 24.1.2008 the accused No.1 at the instance of accused No.3 to 6 started beating the complainant and further turned out the complainant from her matrimonial house in bare three clothes………All the dowry articles and shtridhan belonging to the complainant is in custody of accused No.1, 3 to 6 and are using the same for their personal gain since then the complainant is living at the mercy of her brothers and widow mother.”
  18. A perusal of the aforementioned would reveal that there are no direct and specific allegations against the petitioners that they had given beatings to the complainant or demanded any dowry article or misappropriated the shrtidhan. The expression used is ‘at the instance of accused No.1’. The complainant has failed to bring on record any evidence to show that she had been physically abused by the petitioners or entrustment of any dowry article.
  19. Petitioner No.1 is the sister-in-law of the complainant, who got married on 04.02.1989 and has been residing in her matrimonial home since then and therefore, there is not even a remotest possibility that husband of the complainant was used to give beatings to her at the instance of petitioner No.1. Petitioner No.2 was born on 12.07.1979 and was 11 years of age in March, 1990 when the complainant alleged that she was given beatings by her husband at the instance of petitioner No.2. Moreover, he had left for Canada in March, 1996 and is residing there since then. Similarly, petitioner No.3 aged 74 years had left for Canada in 1996 and is residing there since then with petitioner No.2. In such an eventuality, it is hard to believe that petitioners had harassed the complainant as alleged in the complaint.
  20. It has become a common practice to use the provisions of Section 498- A IPC as a weapon rather than shield by disgruntled wives. The simplest way to harass is to get the relatives of the husband roped in under this provision, no matter they are bed ridden grand parents of the husband or the relatives living abroad for decades. The case in hand is also of similar nature. The complainant has failed to make out a prima facie case against the petitioners regarding allegation of inflicting physical and mental torture to the complainant or demanding dowry from her. The complaint does not disclose specific allegation against the petitioners except casual reference of their names that husband of the complainant gave her beatings at the instance of petitioners. The Hon’ble Supreme Court in Geeta Mehrotra Vs. State of U.P. (2012) 10 SCC 741 quashed the FIR registered against the unmarried sister of the husband on the ground that prima facie case was not attracted against her in the absence of specific allegations.
  21. In view of the aforementioned facts and circumstances, this court is of the opinion that the case in hand is a sheer abuse of process of law and therefore, is a fit case to exercise the jurisdiction of this Court under Section 482 Cr.P.C. Consequently, the complaint No.31861/13 dated 06.12.2016 and all subsequent proceedings arising therefrom including the orders dated 06.12.2016 and 04.08.2017 qua petitioners are quashed.
  22. The petition is allowed accordingly.
    (JAISHREE THAKUR)

JUDGE

May 15, 2020

Pankaj*

Whether reasoned/speaking Yes/No
Whether reportable Yes/No

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

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

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

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

Supreme Court of India

Gananath Pattnaik vs State Of Orissa on 6 February, 2002

Author: Sethi

Bench: R.P. Sethi, Bisheshwar Prasad Singh

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


PETITIONER: GANANATH PATTNAIK

Vs.

RESPONDENT: STATE OF ORISSA

DATE OF JUDGMENT: 06/02/2002

BENCH: R.P. Sethi & Bisheshwar Prasad Singh


JUDGMENT:

SETHI,J.

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

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

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

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

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

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

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


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

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

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

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

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

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

and added:

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

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

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

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

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

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

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

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

……………………….J. (R.P. Sethi)

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

February 6, 2002

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

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

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

regards

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

#Cruelty under #Hindu #Marriage Act different from #IPC #498a. Different standards even IF events & parties are same – #CalcuttaHC

/////It is well known that the standard of proof in civil suit as well as in the criminal proceeding, is different from each other. Civil suit is tried on the basis of preponderance of probability. Criminal proceedings are tried on the basis of proof beyond reasonable doubt

….

Thus, it appears that the ‘cruelty’ under the Hindu Marriage Act has a different meaning altogether, than that of the concept of ‘cruelty’ as envisaged in the Indian Penal Code. It necessarily follows that even the act complained of, in the criminal proceeding may not constitute cruelty within the meaning of Section 498A of the Indian Penal Code, but, still such act may constitute a ground of divorce on the ground of cruelty where such acts are so grave and weighty as to come to the conclusion that the petitioner spouse cannot be reasonably expected to live with the other. https://twitter.com/ATMwithDick/status/1021387677759832064 ////

 
IN THE HIGH COURT AT CALCUTTA

Civil Revisional Jurisdiction Appellate Side

Present:

The Hon’ble Justice Jyotirmay Bhattacharya

C.O. No.4462 of 2007

Asok Kumar Pal

-versus-

Smt. Sawan Pal

For the Petitioner : Mr. Sardar Amjad Ali, Ms. Kaberi Ghosh.
For the Opposite : Ms. Chama Mookherji, Parties. Mr. Surojit Roy Chowdhury, Ms. Chandrima Chatterjee.
Judgment On : 11 – 07 – 2008.

Two proceedings are continuing side by side. One of such proceedings which was initiated on the complaint of the wife/opposite party against her husband under Section 498A/406/120B of the Indian Penal Code, is now pending for consideration before the learned 1st Court of Judicial Magistrate at Sealdah. The other proceeding is a suit for divorce which was also filed by the wife/opposite party against her husband on the ground of cruelty under Section 13(I)(ia) of the Hindu Marriage Act. Both the aforesaid proceedings were thus, initiated at the instance of the wife/opposite party. First of such proceedings was the criminal proceeding which was filed by the wife, as aforesaid. The civil suit for divorce was filed subsequently. The allegations constituting ‘cruelty’, on which the criminal proceeding was initiated, are the allegations on which the Civil Suit was also founded. https://twitter.com/ATMwithDick/status/1021387677759832064

There is no disagreement between the parties on the issue that the similar set of facts are the foundation of both the criminal proceeding and the civil suit. Charge has already been framed in the criminal proceeding. Issues have also been framed in the civil suit.

Since the claim and counter-claim of the parties are identical in both the aforesaid proceedings it is not quite unnatural that some of the issues and/or charges in those proceedings will be identical.

Both the criminal proceeding and the civil suit have matured for hearing. The cross-examination of the wife/opposite party is now going on, in the criminal proceeding. In the civil suit the petitioner has already submitted his evidence in chief on affidavit. Cross-examination of the petitioner is yet to be commenced. At this stage the petitioner/husband filed an application under Section 151 of the Code of Civil Procedure in the civil suit inter alia praying for stay of further proceeding of the civil suit till the disposal of the aforesaid criminal proceeding on the ground that if both the proceedings are allowed to be proceeded with simultaneously then there will be embarrassment of trial not only for the parties, but also for the Court. It was alleged by the petitioner in the said application that if the civil suit is allowed to be proceeded with then he will be compelled to disclose his full defence, in the civil suit and such disclosure will affect his defence in the criminal proceeding.

Such application of the petitioner/husband was rejected by the learned Trial Judge primarily on the ground that since the petitioner has already filed written statement in the suit and the issues have already been framed, the petitioner cannot be affected, if the civil suit is allowed to be continued simultaneously with the criminal proceeding. Thus, the learned Trial Judge held that though similar set of facts are involved in both the criminal proceeding as well as in the civil suit but, still then, there is hardly any chance of embarrassment in the trial of both the proceedings simultaneously, as the defence had already been disclosed by the petitioner in the civil suit.

Challenging the propriety of the said order the petitioner/husband has filed the instant application under Article 227 of the Constitution of India before this Court. Mr. Sardar Amzad Ali, learned Senior Advocate appearing for the petitioner relied upon various decisions of the Hon’ble Supreme Court as well as of this Hon’ble Court to show that when the pleadings of the parties are identical in both the criminal proceeding as well as in the civil suit and when there is possibility of embarrassment of trial because of such identity of dispute in the said proceedings, it will be expedient to stay all further proceedings of the civil suit till the disposal of the criminal proceeding. Following are the decisions which were relied upon by Mr. Ali in support of his aforesaid submission:-

  1. In the case of M.S. Sheriff & Anr. -Vs- State of Madras & Ors. reported in AIR 1954 SC 397.
  2. In the case of Kusheshwar Deby -Vs- Bharat Cooking Coak Ltd. & Ors. reported in AIR 1988 SCC 2118.

  3. In the case of Dibakar Das -Vs- Registrar General, Appellate Side, High Court & Anr. reported in (2006)2 CHN 48.

  4. In the case of Captain M. Paul Anthony -Vs- Bharat Gold Mines Ltd. reported in AIR 1999 SC 1416.

  5. In the case of Union of India -Vs- Monoranjan Mondal @ M.R. Mondal reported in (2005)1 CHN 222.

  6. In the case of Senior Divisional Manager, National Insurance Co. Ltd.

& Anr. -Vs- Satima Cold Storage & Ors. reported in (1989)1 CHN 555.

Mrs. Chama Mookherji, learned Advocate appearing for the opposite party refuted such submission of Mr. Ali by submitting that there is no hard and fast rule which prescribes that in all cases where civil suit and criminal proceeding are founded on a common footing, further proceeding of the civil suit should be stayed till the disposal of the criminal case. Mrs. Mookherji submitted that since the scope of enquiry and the standard of proof in the criminal proceeding as well as in the civil suit are different from each other, civil suit cannot be stayed merely because of pendency of the criminal proceeding. Mrs. Mookherji further contended that in every criminal case, offence complained of, is an offence committed by the accused against the State and as such, the de-facto complainant cannot get any relief in such criminal case, even if, the accused is ultimately found to be guilty and is punished. But, in civil suit the plaintiff can surely get the relief if she succeeds in getting a decree in her favour. She further contended that both the civil suit and the criminal proceeding of such nature, demand speedy and expeditious disposal. As such, further proceeding of the civil suit cannot be stayed. In support of such submission, Mrs. Mookherji relied upon various decisions which are as follows :-

  1. In the case of Kamala Devi Agarwal -Vs- State of West Bengal & Ors. reported in AIR 2001 SC 3846.
  • In the case of Dipot Manager, A.P. State Road Transport Corporation – Vs- Hohd. Yousuf Miya & Ors. reported in (1997)2 SCC 699.

  • In the case of State of Bihar -Vs- Murad Ali Khan & Ors. reported in (1988)4 SCC 655.

  • In the case of Pratibha -Vs- Rameshwari Devi & Ors. reported in 2007(6) SC 554.

  • In the case of State of Rajasthan -Vs- Kalyan Sundaram Cement Industries & Ors. reported in (1996)2 Supreme 333.

  • Heard the learned Counsel of the parties. Considered the materials on record including the order impugned.

    On perusal of the decisions which were cited by Mr. Ali this Court finds that there is uniformity in all the said decisions to the effect that there is no hard and fast rule governing the field. It is only when there is any likelihood of embarrassment, further proceeding of the civil suit can be stayed till the disposal of the criminal proceeding. Whether simultaneous trial of the criminal proceeding and the civil suit will cause any embarrassment or not depends upon the facts and circumstances of each case. As such, the Court has to apply its mind for ascertaining as to whether simultaneous trial of the criminal proceeding and the civil suit will cause any embarrassment, in the present set of facts.

    The decisions which were cited by Mrs. Mookherji excepting the decision in the case of State of Rajasthan -Vs- Kalyan Sundaram Cement Industries (supra), are mostly irrelevant for the present purpose as those are the case where either the criminal proceeding was quashed by different High Courts because of pendency of the civil suit or the departmental enquiry in service matter was stayed because of the pendency of the criminal proceeding. In those set of facts the Hon’ble Supreme Court interfered with the decisions of different High Courts which were under challenge before the Hon’ble Supreme Court. In the case of State of Rajasthan -Vs- Kalyan Sundaram Cement Industries Ltd. & Ors. (supra), the Hon’ble Supreme Court, however, held that stay of the civil suit cannot be granted when the defence has already been filed by the defendant in the civil suit. In fact, the principle which were laid down in the said decision, supports the order impugned as the learned Trial Judge rejected the petitioner’s prayer for stay on identical findings.

    Keeping in mind the principles which were laid down in the aforesaid decisions cited by the parties, let me now consider as to whether the further proceeding of the suit should remain stayed till the disposal of the criminal proceeding or not. It is well known that the standard of proof in civil suit as well as in the criminal proceeding, is different from each other. Civil suit is tried on the basis of preponderance of probability. Criminal proceedings are tried on the basis of proof beyond reasonable doubt. When the standard of proof and the scope of enquiry are different from each other, no Court will feel any embarrassment if both the criminal proceeding and the civil suit are proceeded with simultaneously. That apart, the decision of the Criminal Court is not binding upon Civil Court. As such, civil suit should not ordinarily be stayed for considering the fate of the criminal proceeding in the civil suit. But, still then, it is noticed by this Court that on some occasions, proceeding of the Civil Suit was stayed during the pendency of the criminal proceeding, to avoid embarrassment, on the part of the Court for trial of both the proceedings simultaneously. One of such instances is the case of M.S. Sheriff & Anr. -Vs- State of Madras & Ors. (supra), wherein the Hon’ble Supreme Court stayed the further proceeding of the civil suits till the disposal of the criminal proceeding. In the said decision I find that the criminal proceeding was initiated for wrongful confinement and in the civil suit, damages were claimed on account of such wrongful confinement. Thus, wrongful confinement was a common issue in both the criminal case as well as in the civil suit, and in fact, damage is the consequential relief on account of wrongful confinement. Under such circumstances, the Hon’ble Supreme Court stayed the further proceeding of the civil suit during the pendency of the criminal proceeding for avoiding embarrassment.

    Let me now consider as to how far the said principle is applicable in the facts of the instant case. No doubt cruelty is the ground for divorce. It is equally true that the cruelty is the foundation of the complaint before the criminal Court. Undisputedly the acts constituting cruelty, which were complained of in the criminal proceeding are the acts of cruelty on which the decree for divorce was sought for. Thus, apparently facts are similar in both the aforesaid cases but mere similarity of the facts in both the cases are not sufficient to stay the further proceeding of the civil suit in all cases. Scope and ambit of trial of both the proceedings are to be considered before passing an order of stay of further proceeding of the civil suit.

    Section 498A of the Indian Penal Code deals with cruelty by husband or relatives of husband. The said provision provides that whoever, being the husband or the relatives of the husband of a woman subjects such woman to cruelty, shall be punished with imprisonment for a term which may extent to three years and shall also be liable to fine. What amounts to cruelty for the purpose of the said provision has also been clarified in the explanation added to the said Section which provides that :-

    a) Any unlawful 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 of coercing her or any person related to her 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. Thus, cruelty has a limited meaning as defined in the said provision.

    But under the Hindu Marriage Act cruelty has not been defined. As such, any act or conduct which though may not amount to cruelty within the meaning of the definition of cruelty as given in Section 498A of the Indian Penal Code, may constitute cruelty as envisaged under Section 13(1)(ia) of the Hindu Marriage Act. https://twitter.com/ATMwithDick/status/1021387677759832064

    Since the cruelty has not been defined in the Hindu Marriage Act, it is difficult to define precisely as to what exactly cruelty means under Section 13(1)(ia) of the Hindu Marriage Act. Cruelty under Section 13(1)(ia) of the Hindu Marriage Act may extend to behaviour which may cause pain and injury to the mind as well as to render the continuance in matrimonial home an ordeal where it becomes impossible for them to live together with mental agony, torture or distress. The question as to whether an act complained of was cruel or not is to be determined from whole of the facts and matrimonial relations between the spouses regard being given to their culture, temperament, status in life and state of health of the parties interaction between them in their daily life. Cruelty for the purpose of matrimonial relationship means where one spouse has so treated the other and manifested such feelings towards her or him as to have inflicted bodily injury or to have caused reasonable apprehension of bodily sufferings or of being injured. Cruelty may be physical, mental or legal. In matrimonial laws it may be of infinite variety. It may be by words, gestures or by mere silence, violence or non-violence. To constitute cruelty, the conduct complained of, should be so grave and weighty as to come to the conclusion that the petitioner spouse cannot be reasonably expected to live with the other spouse. It must be more serious than ordinary wear and tear of the married life. The cumulative conduct, taking into consideration the circumstances and background of the parties has to be examined to reach the conclusion whether the conduct complained of amounts to cruelty in matrimonial laws or not. Thus, cruelty postulates a treatment of the petitioner with such cruelty as to reasonable apprehension in the petitioner’s mind that it will be harmful or injurious for the petitioner to live with the other spouse. Cruelty may be physical or mental. Mental cruelty may consist of verbal abuse and insult by using filthy and abusive language leading to constant disturbance of mental peace of the other party.

    Thus, it appears that the ‘cruelty’ under the Hindu Marriage Act has a different meaning altogether, than that of the concept of ‘cruelty’ as envisaged in the Indian Penal Code. It necessarily follows that even the act complained of, in the criminal proceeding may not constitute cruelty within the meaning of Section 498A of the Indian Penal Code, but, still such act may constitute a ground of divorce on the ground of cruelty where such acts are so grave and weighty as to come to the conclusion that the petitioner spouse cannot be reasonably expected to live with the other.

    Since the concept of cruelty under the Indian Penal Code is not exactly identical with the concept of cruelty as envisaged under Section 13(1)(ia) of the Hindu Marriage Act, this Court cannot hold that there will be any embarrassment on the part of the Civil Court in continuing with the trial of the suit during the pendency of the criminal proceeding.

    That apart, the petitioner has already disclosed his defence in the civil suit. Since the defence has already been disclosed by the petitioner in the civil suit, it cannot be reasonably expected that a different stand will be taken by him in the criminal proceeding against identical acquisition. Thus, when the defence has already been filed by the petitioner in the civil suit and the scope of enquiry in the civil suit has already been determined by framing of issue therein, this Court relying upon the decision of the Hon’ble Supreme Court in the case of State of Rajasthan -Vs- Kalyan Sundaram Cement Industries Ltd. & Ors. (supra) as well as on the decision of the Hon’ble Court in the case of Senior Divisional Manager, National Insurance Co. Ltd. & Anr. -Vs- Satima Cold Storage & Ors. (supra), holds that further proceeding of the civil suit cannot be stayed on account of pendency of the Criminal proceeding.

    In both the criminal proceeding as well as in the Civil Suit, the examination of the wife has commenced. Evidence-in-chief of the wife has already been concluded in both the criminal proceeding as well as in the Civil Suit. Cross- examination of the wife has commenced in the criminal proceeding and a date has been fixed in the Civil Suit for cross-examination of the wife. This Court holds that if the Civil Suit is stayed at such advanced stage of trial, then the opposite party will suffer loss and injury.

    In my view, under such circumstances, the Civil Court will not find any embarrassment, if both the criminal proceedings and the civil suit are tried simultaneously as the scope of enquiry and the standard of proof in both the proceedings are not identical. That apart, both the criminal proceeding as well as the suit for divorce demand speedy disposal. Stay of any one of such suit and/or proceeding will surely have a wrong impact not only on the society but also on the parties in their matrimonial life.

    Under such circumstances, this Court does not find any justification to interfere with the order impugned.

    Urgent xerox certified copy of this order, if applied for, be given to the parties, as expeditiously as possible.

    ( Jyotirmay Bhattacharya, J. )