We are of the view that the mere fact that the husband
has developed some intimacy with another, during the
subsistence of marriage and failed to discharge his marital
obligations, as such would not amount to “cruelty”, but it
must be of such a nature as is likely to drive the spouse to
commit suicide to fall within the explanation to Section 498A
IPC.
Harassment, of course, need not be in the form of
physical assault and even mental harassment also would
come within the purview of Section 498A IPC.
Mental
cruelty, of course, varies from person to person, depending
upon the intensity and the degree of endurance, some may
meet with courage and some others suffer in silence, to
some it may be unbearable and a weak person may think of
ending one’s life. We, on facts, found that the alleged extra
marital relationship was not of such a nature as to drive the
wife to commit suicide or that A-1 had ever intended or
acted in such a manner which under normal circumstances,
would drive the wife to commit suicide.
IN THE SUPREME COURT OF INDIA
CRIMINAL APPEALLATE JURISDICTION
CRIMINAL APPEAL NO.811 OF 2004
Pinakin Mahipatray Rawal
Appellant
Versus
State of Gujarat
Respondent
JUDGMENT
K.S. RADHAKRISHNAN, J.1
Decided On:
1.
We are in this case concerned with the question as to
whether the relationship between A-1 and A-2 was extra-
marital leading to cruelty within the meaning of Section
498A IPC and also amounted to abetment leading to the act
of suicide within the meaning of Section 306 IPC.
2.
A-1, the first accused, along with A-2 and A-3, were
charge-sheeted for the offences punishable under Sections
498A, 304-B and 306 IPC. The Sessions Court convicted A-1
for the offence punishable under Section 498A IPC and
sentenced him to suffer RI for three years and to pay a fine
of Rs.5,000/- and in default to undergo further RI for six
months. A-1 was also convicted for offence punishable under
Section 306 IPC and sentenced to suffer RI for 10 years and
to pay a fine of Rs.5,000/- and in default to undergo further
RI for six months.
A-2 and A-3, the mother of A-1 were,
however, acquitted of the various offences alleged against
them. The trial Court also acquitted A-1 of the offence
charged against him under Section 304-B IPC. On appeal by
A-1, the High Court though confirmed the conviction,
modified the sentence under Section 498A IPC to two years’
RI and a fine of Rs.2,500/- and in default to undergo further
RI for six months, and for the offence under Section 306 IPC,
the sentence was reduced to RI for five years and to pay a
fine of Rs.5,000/- and in default to undergo RI for one year.
It was ordered that the sentences would run concurrently.
Aggrieved by the judgment of the High Court, this appeal
has been preferred by A-1.
3
3.
Shri Sanjay Visen, learned counsel appearing for the
Appellant, submitted that the allegations raised against the
accused in respect of the alleged extra-marital relationship
with second accused would not constitute an offence under
Section 498A IPC. Learned counsel also submitted that the
suicidal death of the deceased was not a direct result of the
alleged extra-marital relationship and would not constitute
an offence punishable under Section 306 IPC.
Learned
counsel also submitted that even assuming that the
Appellant was maintaining extra-marital relationship with the
second accused, there is no mens rea proved to show that
such relationship was maintained by the accused with an
intention to drive the deceased to commit suicide. Placing
reliance upon the suicide note Ex.44, learned counsel
submitted that the deceased did not allege any cruelty or
harassment on the part of the accused which led the
deceased to commit suicide.
Learned counsel submitted
that in any view, the conduct of the accused or the alleged
relationship he had with A-2 was not of such a degree that
would incite/provoke or push the deceased to a depressed
situation to end her life.
4.
Mrs. Sumita Hazarika, learned counsel appearing for the
State, on the other hand submitted that extra-marital
relationship between the first and second accused was of
such a degree to disturb the mental balance of the
deceased, which amounted to cruelty within the explanation
to Section 498A IPC. Referring to various letters written by
the deceased to her father, learned counsel pointed out that
those letters would clearly depict the trauma undergone by
her, which ultimately drove her to commit suicide. Learned
counsel also referred to the latter part of the suicide note
and submitted that the same would indicate that A-1 and A-2
were in love and that A-1 wanted to marry A-2 and it was for
their happiness that the deceased committed suicide.
Learned counsel submitted that the Courts below have
correctly appreciated the documentary as well as oral
evidence of this case, which calls for no interference by this
Court.
5.
We may before examining the various legal issues refer
to some relevant facts.
A-1 married the deceased in the
year -1989 and was leading a happy married life. A-1 while
working as a Field Officer in the Life Insurance Corporation of
India came into contact with A-2, who was then unmarried
and a colleague, working with him in the Corporation. Official
relationship and contacts developed into an intimacy, which
according to the prosecution, was “extra marital”. Due to
this extra marital relationship, the deceased, the wife of A-1,
developed a feeling of alienation, loss of companionship,
etc., which ultimately drove her to commit suicide on
18.3.1996 by leaping out of the terrace of a flat leaving a
suicide note Ex.44.
6.
Prosecution in order to establish its case examined
altogether eleven witnesses and produced twenty two
documents.
Prosecution, however, was not successful in
proving that A-1 or A-3 had caused any physical or mental
harassment to the deceased demanding dowry.
A-3, the
mother of A-1, was acquitted of the charge and no evidence
whatsoever was adduced to show that A-1 had also caused
any harassment physically or mentally demanding dowry.
Prosecution story entirely rests on the nature of relationship
A-1 had with A-2.
7.
The prosecution in order to prove the relationship as
“extra marital”, made reference to few letters exchanged
between the deceased and her father. Ex.27 is letter of the
deceased written on 2.7.1993 to her father informing him
about the relationship A-1 had with A-2, which also disclosed
that the father of A-1 had gone to the house of A-2 twice to
persuade A-2 to withdraw from that relationship and advised
early marriage for A-2. Ex.28 is another letter dated
5.7.1993, addressed by the deceased to her father, wherein
she had stated that she had also gone to the house of A-2
and told her that she was prepared to part with her husband
A-1 and that A-2 had told her that deceased had blindly
placed faith on her husband.
Prosecution also made
reference to Ex.29, letter dated 26.7.1993, wherein the
deceased had again made a complaint to her father of the
continued relationship of A-1 and A-2. Ex.30 is yet another
letter dated 6.8.1993 written by the deceased again to her
parents, wherein she had indicated that even her father-in-
law was fed up with the attitude of A-1 and that often he
used to come to the house late in the night. Reference was
made to another letter Ex.31 dated 17.8.1993 written by the
deceased to her parents wherein also she had made
grievance against the behavior of A-1 and the steps taken by
the father-in-law to mend the ways of A-1.
Letter also
indicated that A-1 had made a suggestion to include A-2 also
in their life, which she opposed.
8.
Prosecution stand is that the above mentioned letters
would disclose the feelings and sufferings of an unfortunate
wife having come to know of the love affair between her
husband A-1 and his colleague A-2, which ultimately led her
to commit the act of suicide. Further, it is also the stand of
the prosecution that the deceased died within seven years of
marriage and hence under Section 113A of the Evidence Act,
the
Court
can
presume,
having
regard
to
all
other
Page 7
circumstances of the case, that such suicide had been
abetted by the husband.
9.
We have to examine the question as to whether A-1 is
guilty or not under Section 498A and Section 306 IPC, in the
light of the fact that A-2 was already found not guilty of the
charges levelled against her under Sections 498A, 306 and
304-B read with Section 114 IPC.
Further, the Court has
recorded a clear finding that the prosecution could not prove
any immoral or illegal relationship between A-1 and A-2 or
that A-1 had tortured mentally or physically his wife
demanding dowry.
Further, there is also a clear finding of
the trial Court that A-2 had not contributed or caused any
mental harassment to the deceased so as to drive her to
commit the act of suicide. Further, the facts would disclose
that during the period of alleged intimacy between A-1 and
A-2, A-2 got married in November, 1993. Prosecution story is
that the intimacy between A-1 and A-2 developed years prior
to that and, of course, if the intimacy or relationship between
A-1 and A-2 was so strong, then A-2 would not have got
married in November, 1993.
During the period of alleged
relationship between A-1 and A-2, it is pertinent to note that
the deceased
got pregnant twice, once in the year 1992,
which was aborted, and the year following when the wife
delivered a baby girl, which unfortunately died two days
after her birth.
Prosecution has not alleged any hand or
involvement on the part of A-1 on such abortion.
Facts
indicate that both A-1 and the deceased were staying under
the same roof and that A-1 was discharging his marital
obligations and was leading a normal married life.
10. A-1 had not caused any physical or mental torture on
the deceased, but for the alleged relationship between A-1
and A-2.
Parents of the deceased also did not make any
allegation against A-1 of ill-treatment of wife or of dowry
demand. Possibly, he might have caught up in a one-sided
love affair with some liking towards A-2. Can it be branded
as an “extra-marital affair” of that degree to fall within the
expression “cruelty”?
Extra-marital affair is a term which
has not been defined in the Indian Penal Code and rightly not
ventured since to give a clear definition of the term is
difficult, as the situation may change from case to case.
ALIENATION OF AFFECTION
11. We are not prepared to say that there was any willful or
malicious interference by A-2 in the marital relationship
between A-1 and the deceased. A-2, it has not been proved,
had in any way caused any kind of mental harassment by
maintaining any relationship with A-1 so as to cause any
emotional distress on the deceased. No evidence had been
adduced or proved to show that A-2 had alienated A-1, the
husband from the deceased.
Further, no evidence had been
adduced to show that due to the wrongful conduct of A-2,
the deceased had lost companionship, affection, love, sexual
relationship.
No evidence has been adduced to show that
there has been any attempt on the part of A-2 to disrupt the
marital relationship between A-1 and the deceased.
12. Alienation of affection by a stranger, if proved, is an
intentional tort i.e. interference in the marital relationship
with intent to alienate one spouse from the other. Alienation
of affection is known as “Heart Balm” action.
Anglo-Saxon
common law on alienation of affection has not much roots in
this country, the law is still in its nascent stage.
Anglo-
Saxon based action against third parties involving tortuous
interference
with
the
marital
relationship
was
mainly
compensatory in nature which was earlier available to the
husband, but, of late, a wife could also lay such a claim
complaining of alienation of affection.
preserve
marital
harmony
by
The object is to
deterring
wrongful
interference, thereby to save the institution of marriage.
Both the spouses have a valuable interest in the married
relationship, including its intimacy, companionship, support,
duties, affection, welfare of children etc.
13. We notice, in this country, if the marital relationship is
strained and if the wife lives separately due to valid reasons,
the wife can lay a claim only for maintenance against the
husband and if a third party is instrumental for disrupting her
marriage,
by
alienating
her
spouse’s
affection,
companionship, including marital obligations, seldom, we
find the disgusted spouse proceeds against the intruder into
her matrimonial home. Possibly, in a given case, she could
question the extent, that such injuries can be adequately
compensated, by a monetary award.
Such an action, of
course, may not protect a marriage, but it compensates
those who have been harmed.
14. We are, however, of the view that for a successful
prosecution of such an action for alienation of affection, the
loss of marital relationship, companionship, assistance, loss
of consortium, etc. as such may not be sufficient, but there
must be clear evidence to show active participation,
initiation or encouragement on the part of a third party that
he/she must have played a substantial part in inducing or
causing one spouse’s loss of other spouse’s affection. Mere
acts, association, liking as such do not become tortuous.
Few countries and several States in the United States of
America have passed legislation against bringing in an
action for alienation of affection, due to various reasons,
including the difficulties experienced in assessing the
monetary damages and few States have also abolished
“criminal conversation” action as well.
15. We may, however, indicate that few States and
countries strongly support such an action, with the object of
maintaining and preserving the marriage as a sacred
institution.
Strong support comes from the State of
Mississippi in the United States. In Knight Vs. Woodfield
50 So. 3d 995 (Miss. 2011), the husband filed a suit for
alienation against his wife. The wife alleged paramour after
gaining access to a phone call.
Facts disclosed they had
exchanged 930 text messages and talked more than 16
hours in two months. In that case jurisdictional issues were
raised, but Court reaffirmed that law of alienation of
affection is firmly established in State of Mississippi. Another
case of some importance is Dare Vs. Stokes, 62 So, 3d
858
(Miss.
2011),
where
in
a
property
settlement
agreement of divorced couple, a provision was made that
the husband would not bring suit against any other person
for alienation of affection. Agreement was reduced to a final
order by the trial Court. Later husband came to know that
his wife had a love affair with one Dare and hence sought for
a modification of the agreement. He also sent a notice to
Dare as well of his intention to file a suit for alienation of
affection.
Dare’s attempt to intervene and oppose the
application for modification of the agreement was not
favourably considered by the Court on the ground that he
cannot middle with the marital relationship.
16. Action for alienation of affection lies for all improper
intrusions or assaults on the marriage relationship by
another, whether or not associated with “extramarital sex”,
his or her continued overtures or sexual liaisons can be
construed as something akin to an assumption of risk that
his/her conduct will injure the marriage and give rise to an
action.
But all the same, a person is not liable for alienation
of affection for merely becoming a passive object of
affection.
The liability arises only if there is any active
participation, initiation or encouragement on the part of the
defendant. Acts which lead to the loss of affection must be
wrongful, intentional, calculated to entice the affection of
one spouse away
from
the
other, in order to support a
cause of action for alienation of affection.
claim
for
For proving a
alienation of affection it is not necessary for a
party to prove an adulterous relationship.
17. We have on facts found that A-2 has not intruded into
the family life of A-1 and his deceased wife, and the Court on
evidence acquitted A-2 of all the charges levelled against
her. Consequently, it cannot be said that A-2 had in any way
contributed or abetted the deceased in committing the act of
suicide, or had attempted to alienate the affection of A-1
towards his deceased wife.
If that be so, we have to
examine what type of relationship A-1 had with A-2. Can it
be said as an “extra-marital relationship” of such a degree
which amounted to “cruelty” falling within the explanation to
Section 498A and also leading to an offence under Section
306 IPC.
EXTRA-MARITAL RELATIONSHIP
18. Marital relationship means the legally protected marital
interest of one spouse to another which include marital
obligation to another like companionship, living under the
same roof, sexual relation and the exclusive enjoyment of
them, to have children, their up-bringing, services in the
home, support, affection, love, liking and so on.
Extra-
marital relationship as such is not defined in the IPC.
Though, according to the prosecution in this case, it was that
relationship which ultimately led to mental harassment and
cruelty within the explanation to Section 498-
A and that A-1 had abetted the wife to commit suicide. We
have to examine whether the relationship between A-1 and
A-2 amounted to mental harassment and cruelty.
19. We have to examine the correctness or otherwise of the
findings recorded by the trial Court, affirmed by the High
Court, as to whether the alleged relationship between A-1
and A-2 has in any way constituted cruelty within the
meaning of explanation to Section 498A IPC. The facts in this
case have clearly proved that the A-1 has not ill-treated the
deceased, either physically or mentally demanding dowry
and was living with A-1, in the matrimonial home till the
date, she committed suicide. Cruelty includes both physical
and mental cruelty for the purpose of Section 498A. Section
498A IPC reads as under :-
“498A. Husband or relative of husband of a woman
subjecting her to cruelty.-- Whoever, being the husband
or the relative of the husband of a woman, subjects
such woman to cruelty shall be punished with
imprisonment for a term which may extend to three
years and shall also be liable to fine.
Explanation.- For the purposes of this section," cruelty"
means-
(a) any wilful conduct which is of such a nature as is
likely to drive the woman to commit suicide or to cause
grave injury or danger to life, limb or health (whether
mental or physical) of the woman; or
(b) harassment of the woman where such harassment
is with a view to coercing her or any person related to
her to meet any unlawful demand for any property or
valuable security or is on account of failure by her or
any person related to her to meet such demand.
20. This Court in Girdhar Shankar Tawade Vs. State of
Maharashtra, (2002) 5 SCC 177, examined the scope of
the explanation and held as follows :-
“3. The basic purport of the statutory provision is
to avoid “cruelty” which stands defined by
attributing a specific statutory meaning attached
thereto as noticed hereinbefore. Two specific
instances have been taken note of in order to
ascribe a meaning to the word “cruelty” as is
expressed
by
the
legislatures:
whereas
Explanation (a) involves three specific situations
viz. (i) to drive the woman to commit suicide or (ii)
to cause grave injury or (iii) danger to life, limb or
health, both mental and -
physical, and thus involving a physical torture or
atrocity, in Explanation (b) there is absence of
physical injury but the legislature thought it fit to
include only coercive harassment which obviously
as the legislative intent expressed is equally
heinous to match the physical injury: whereas one
is patent, the other one is latent but equally
serious in terms of the provisions of the statute
since the same would also embrace the attributes
of “cruelty” in terms of Section 498A.”
21. In Gananath Pattnaik Vs. State of Orissa, (2002) 2
SCC 619, this Court held that the concept of cruelty under
Section 498A IPC and its effect under Section 306 IPC varies
from individual to individual also depending upon the social
and economic status to which such person belongs. This
Court held that cruelty for the purpose of offence and the
said Section need not be physical. Even mental torture or
abnormal behavior may amount to cruelty or harassment in
a given case.
22. We are of the view that the mere fact that the husband
has developed some intimacy with another, during the
subsistence of marriage and failed to discharge his marital
obligations, as such would not amount to “cruelty”, but it
must be of such a nature as is likely to drive the spouse to
commit suicide to fall within the explanation to Section 498A
IPC.
Harassment, of course, need not be in the form of
physical assault and even mental harassment also would
come within the purview of Section 498A IPC.
Mental
cruelty, of course, varies from person to person, depending
upon the intensity and the degree of endurance, some may
meet with courage and some others suffer in silence, to
some it may be unbearable and a weak person may think of
ending one’s life. We, on facts, found that the alleged extra
marital relationship was not of such a nature as to drive the
wife to commit suicide or that A-1 had ever intended or
acted in such a manner which under normal circumstances,
would drive the wife to commit suicide.
23.
We also notice in this case that the wife committed
suicide within seven years of the date of the marriage.
Hence, a presumption under Section 113A of the Evidence
Act could be drawn.
24.
Section 113A which was inserted by the Criminal Law
(Second Amendment) Act, 1983, w.e.f. 26.12.1983, is given
below for easy reference :-
“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 (45 of 1860 ).
25. Section 113A only deals with a presumption which the
Court may draw in a particular fact situation which may arise
when necessary ingredients in order to attract that provision
are established. Criminal law amendment and the rule of
procedure was necessitated so as to meet the social
challenge of saving the married woman from being ill-treated
or forcing to commit suicide by the husband or his relatives,
demanding dowry.
Legislative mandate of the Section is
that when a woman commits suicide within seven years of
her marriage and it is shown that her husband or any relative
of her husband had subjected her to cruelty as per the terms
defined in Section 498A IPC, the Court may presume having
regard to all other circumstances of the case that such
suicide has been abetted by the husband or such person.
Though a presumption could be drawn, the burden of proof of
showing that such an offence has been committed by the
accused under Section 498A IPC is on the prosecution. On
facts, we have already found that the prosecution has not
discharged the burden that A-1 had instigated, conspired or
intentionally aided so as to drive the wife to commit suicide
or that the alleged extra marital affair was of such a degree
which was likely to drive the wife to commit suicide.
26. Section 306 refers to abetment of suicide. It says that if
any person commits suicide, whoever abets the commission
of such suicide, shall be punished with imprisonment for a
term which may extend to 10 years and shall also be liable
to fine. The action for committing suicide is also on account
of mental disturbance caused by mental and physical
cruelty.
To constitute an offence under Section 306, the
prosecution has to establish that a person has committed
suicide and the suicide was abetted by the accused.
Prosecution has to establish beyond reasonable doubt that
the deceased committed suicide and the accused abetted
the commission of suicide.
But for the alleged extra marital
relationship, which if proved, could be illegal and immoral,
nothing has been brought out by the prosecution to show
that the accused had provoked, incited or induced the wife
to commit suicide.
27. We have on facts found that at best the relationship of
A-1 and A-2 was a one-sided love affair, the accused might
have developed some likings towards A-2, his colleague, all
the same, the facts disclose that A-1 had discharged his
marital obligations towards the deceased. There is no
evidence of physical or mental torture demanding dowry.
Deceased might have been under serious “emotional stress”
in the sense that she had undergone an abortion in the year
1992, and the year following that, though a daughter was
born to her, the daughter also died few days of its birth. After
one or two years, she committed suicide. Evidence, in any
way, is lacking in this case to hold, that due to the alleged
relationship between A-1 and A-2, A-1 had intended or
intentionally inflicted any emotional stress on the deceased
wife, so as to drive her to the extreme step of ending her life.
In the suicide note she had not made any accusations as
such against A-1 or A-2, on the other hand she stated that it
was she who was selfish and egoist. Suicide note (Ex.44),
which was translated by the High Court, reads as under :-
Page 23
“My husband Pinakin is a very good man and he is
not responsible. I also love him. However, I am
extremely bad, selfish and egoist and, therefore,
not a match to him.
He is in love with Priti Bhakt, serving in LIC and
wants to marry her and, therefore, for their
happiness, I am taking this step.
No one of my house is responsible. Therefore, they
may not be harassed. Kindly arrange their
marriage with all pomp and gaiety. I gift my dead
body to the medical students and I donate my
eyes to the blinds.
Yours
Jagruti
This is my last wish which be fulfilled for the peace
of my soul.”
28. Suicide note completely exonerates A-1, which states
that he was not responsible for death of the deceased. On
the other hand, the deceased described herself as extremely
selfish, egoist and, therefore, not a match for A-1.
She
entertained the belief that her husband A-1 was in love with
A-2 and wanted to marry A-2. Note states it was for their
happiness she had decided to end her life. She also wanted
to have the marriage of A-1 and A-2 solemnized with pomp
and gaiety.
On reading the suicide note, one can infer that
the deceased was so possessive of her husband, and was
always under an emotional stress that she might lose her
husband.
Too much of possessiveness could also lead to
serious emotional stress, over and above the fact that she
had one abortion and her daughter died after few days of
birth. No evidence is forthcoming in this case to show that
A-2 ever evinced any interest to marry A-1.
On the other
hand, during the subsistence of the alleged relationship, A-2
herself got married.
29. We are, therefore, of the considered view that the
relationship A-1 had with A-2 was not of such a nature which
under normal circumstances would drive one to commit
suicide or that A-1 by his conduct or otherwise ever abetted
or intended to abet the wife to commit suicide.
Courts
below, in our view, have committed serious error in holding
that it was due to the extra marital relationship A-1 had with
A-2 that led the deceased to take the extreme step to
commit suicide, and A-1 was instrumental for the said act.
In the circumstances, we are inclined to allow this appeal
and set aside the order of conviction and sentence imposed
on the appellant, and he is set at liberty. Ordered as above.
.................................J.
(K.S. Radhakrishnan)
.................................J.
September 09, 2013.
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