Husband's Extra-Marital Affair is Not Cruelty : SC



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

K.V. Prakash Babu … Appellant
State of Karnataka … Respondent


Dipak Misra, J.
Leave granted.
2. The instant appeals reveal a factual score that has the potentiality
to shock a sensitive mind and a sincere heart, for the materials brought on
record show how “suspicion” can corrode the rational perception of value of
life and cloud the thought of a wife to such an extent, that would persuade
her to commit suicide which entail more deaths, that is, of the alleged

paramour, her mother and brother who being not able to emotionally cope up
with the social humiliation, extinguish their life-spark; and ultimately
the situation ropes in the husband to face the charge for the offences
punishable under Sections 302 and 498-A of the Indian Penal Code (IPC) read
with Section 3 of the Dowry Prohibition Act, 1961 (‘1961 Act’ for short).
As the facts would unveil, the husband gets acquitted for the offence under
Section 302 IPC but convicted in respect of other two charges by the trial
court. In appeal, his conviction under Section 3 of the 1961 Act is
annulled but success does not come in his way as regards the offence under
Section 498-A IPC. And the misery does not end there since in the appeal
preferred by the State, he is found guilty of the offence under Section 306
IPC and sentenced to suffer four years rigorous imprisonment and to pay a
fine of Rs.50,000/- to be given to the father of the victim with a default

3. In the course of our adumbration and analysis of facts, it will be
uncurtained how the seed of suspicion grows enormously and the rumours can
bring social dishonor and constrain not-so-thick skinned people who have
bound themselves to limitless sorrow by thinking ‘it is best gift of God
to man” and choose to walk on the path of deliberate death. A sad
incident, and a shocking narrative, but we must say, even at the beginning,
the appellant-husband has to be acquitted regard being had to the evidence
brought on record and the exposition of law in the field.

4. The singular issue, as the aforesaid passage would show, that arises
for consideration in these appeals, by special leave, that assails the
judgment and order dated 13.04.2016 passed by the High Court of Karnataka
at Bengaluru in Criminal Appeal No. 655 of 2012 whereby the High Court has
allowed the appeal preferred by the State which had called in question the
legal acceptability of the judgment and order passed by the learned
Additional Sessions Judge, Fast Track Court-III, District Kolar, Karnataka,
who vide judgment dated 5.1.2012 had found the appellant guilty of the
offences punishable under Section 498-A of the IPC and Section 3 of the
1961 Act and sentenced him to suffer rigorous imprisonment of one year and
two years respectively with the default clause. It is apt to note here
that the appellant had also preferred Criminal Appeal No. 126 of 2012
wherein the High Court while passing the common judgment has opined that
the prosecution has miserably failed to establish the conviction under the
1961 Act. However, as stated earlier, it found the appellant guilty of the
offence under Section 306 IPC and the result of such conviction was
imposition of four years rigorous imprisonment and fine of Rs. 50,000/-
(Rupees fifty thousand only) with the further stipulation that Rs.45,000/-
(Rupees forty five thousand only) be paid to the father of the deceased.

5. The occurrence that led to launching of prosecution is that the
marriage between the appellant and the deceased, Anjanamma, was solemenised
on 12.10.1997. The appellant, as alleged, got involved with one Deepa,
daughter of one Ashwathamma inasmuch as his visit to the house of
Ashwathamma was quite frequent. As the prosecution story proceeds, the
deceased felt extremely hurt and eventually being unable to withstand the
conduct of the husband who was allegedly involved in an extra-marital
affair, put an end to her life on 20th August, 2004. An FIR was lodged at
the concerned police station by the father of the deceased, which set the
criminal law in motion and the investigating officer recorded statement of
witnesses under Section 161 of the IPC and after completing the
investigation, placed the charge sheet under Sections 201, 302 and 498-A of
the IPC and Section 3 of the 1961 Act before the concerned Magistrate who,
in turn, committed the matter to the Court of Session. The accused abjured
his guilt and expressed his intention to face trial, advancing the plea of
denial and false implication. In order to establish the charges, the
prosecution examined 31 witnesses in all. The defence chose not to adduce
any evidence. The main witnesses are father of the deceased, PW-1 and the
neighbours who have deposed about the extra- marital affair of the husband
and the death of the deceased.

6. As we have already stated about the conviction and the punishment,
the same need not be stated in detail. There is no dispute that the
learned trial judge as well as the High Court has not found the appellant
guilty of the offence punishable under Section 302 of the IPC. The High
Court has also arrived at the conclusion after detailed deliberation that
the prosecution has not been able to establish the offence under Section 3
of the 1961 Act. However, it has found the appellant guilty of the offence
under Sections 498-A and 306 of the IPC.

7. It is submitted by Mr. S.R. Singh, learned senior counsel that the
High Court has completely erred in appreciating the evidence to sustain the
conviction under Section 498-A inasmuch as there is no material whatsoever
with regard to demand of dowry or any kind of torture. According to Mr.
Singh, the High Court has applied the second limb of Section 498-A IPC on
the foundation that the involvement of the husband in extra-marital affair
established cruelty under the said provision and, therefore, it would be an
offence under Section 306 of the IPC which is contrary to the
pronouncements of this Court.

8. Mr. V.N. Raghupathy, learned counsel appearing for the State had
supported the judgment and order passed by the High Court by placing
reliance on the analysis of the various facets and the scrutiny and
scanning of the evidence of the prosecution witnesses including that of the
father, the neighbours and the investigating officer.
9. To appreciate the submissions raised at the Bar, we have bestowed our
anxious consideration and carefully examined the decision rendered by the
trial court and that of the High Court. On a studied scrutiny of the
evidence, it is demonstratable that the father of the deceased in his
deposition has not stated anything with regard to any kind of cruelty meted
out to the deceased except stating that she quite often complained to the
parents about the visit of the appellant to the house of Ashwathamma and
that she had suspicion against her husband that he was going to have a
second marriage. The other witnesses including the investigating officer
have deposed that there was discussion in the locality about the illicit
connection of the appellant with one lady at Chelur Village. Barring the
aforesaid, there is no whisper with regard to any kind of ill-treatment or
cruel behaviour by the husband.

10. In view of the aforesaid evidence, the question that emerges for
consideration is whether the conviction under Section 498A and 306 IPC is
legally justiciable in this context. We think it appropriate to refer to
Section 498A of the IPC. The said provision reads as follows:-

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

Explanation: For the purposes of this section, "cruelty" means

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


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

11. The said provision came up for consideration in Giridhar Shankar
Tawade vs. State of Maharashtra[1], where the Court dwelling upon the scope
and purport of Section 498-A IPC has held thus:-
“The basic purport of the statutory provision is to avoid 'cruelty' which
stands defined by attributing a specific statutory meaning attached thereto
as noticed herein before. Two specific instances have been taken note of in
order to ascribe a meaning to the word 'cruelty' as is expressed by the
legislatures : Whereas explanation (a) involves three specific situations
viz., (i) to drive the woman to commit suicide or (ii) to cause grave
injury or (iii) danger to life, limb or health, both mental and physical,
and thus involving a physical torture or atrocity, in explanation (b) there
is absence of physical injury but the legislature thought it fit to include
only coercive harassment which obviously as the legislative intent
expressed is equally heinous to match the physical injury : whereas one is
patent, the other one is latent but equally serious in terms of the
provisions of the statute since the same would also embrance the attributes
of 'cruelty' in terms of Section 498-A.”
[emphasis added]

12. In Gurnaib Singh v. State of Punjab[2], while dwelling upon the
concept of ‘cruelty’ enshrined under Section 498-A the Court has opined

“Clause (a) of the Explanation to the aforesaid provision defines “cruelty”
to mean “any wilful conduct which is of such a nature as is likely to drive
the woman to commit suicide”. Clause (b) of the Explanation pertains to
unlawful demand. Clause (a) can take in its ambit mental cruelty.”

13. The aforesaid analysis of the provision clearly spells how coercive
harassment can have the attributes of cruelty that would meet the criterion
as conceived of under Section 498-A of the IPC. Thus, the emphasis is on
any wilful conduct which is of such a nature that is likely to drive the
woman to commit suicide. The mental cruelty which is engraved in the first
limb of Section 498-A of the IPC has nothing to do with the demand of
dowry. It is associated with mental cruelty that can drive a woman to
commit suicide and dependent upon the conduct of the person concerned.

14. In this regard, Mr. Singh has drawn our attention to the authority in
Pinakin Mahipatray Rawal v. State of Gujarat[3]. In the said case, the
Court was dealing with as to whether relationship between the appellant and
the second accused therein was extra-marital leading to cruelty within the
meaning of Section 498-A IPC and whether that would amount to abetment
leading to the act of suicide within the meaning of Section 306 IPC.
Dealing with the extra-marital relationship, the Court has opined that
marital relationship means the legally protected marital interest of one
spouse to another which include marital obligation to another like
companionship, living under the same roof, sexual relation and the
exclusive enjoyment of them, to have children, their up-bringing, services
in the home, support, affection, love, liking and so on, but extra-marital
relationship as such is not defined in the IPC. The Court analyzing further
in the context of Section 498A observed that the mere fact that the husband
has developed some intimacy with another woman, during the subsistence of
marriage and failed to discharge his marital obligations, as such would not
amount to “cruelty”, but it must be of such a nature as is likely to drive
the spouse to commit suicide to fall within the explanation to Section 498A
IPC. The Court further elucidated that harassment need not be in the form
of physical assault and even mental harassment also would come within the
purview of Section 498A IPC. Mental cruelty, of course, varies from person
to person, depending upon the intensity and the degree of endurance, some
may meet with courage and some others suffer in silence, to some it may be
unbearable and a weak person may think of ending one’s life. The Court
ruled that in the facts of the said case the alleged extra-marital
relationship was not of such a nature as to drive the wife to commit
suicide. The two-Judge Bench further opined that:-
“Section 306 refers to abetment of suicide which says that if any person
commits suicide, whoever abets the commission of such suicide, shall be
punished with imprisonment for a term which may extend to 10 years and
shall also be liable to fine. The action for committing suicide is also on
account of mental disturbance caused by mental and physical cruelty. To
constitute an offence under Section 306, the prosecution has to establish
that a person has committed suicide and the suicide was abetted by the
accused. The Prosecution has to establish beyond reasonable doubt that the
deceased committed suicide and the accused abetted the commission of
suicide. But for the alleged extra marital relationship, which if proved,
could be illegal and immoral, nothing has been brought out by the
prosecution to show that the accused had provoked, incited or induced the
wife to commit suicide.”
[emphasis added]
15. Slightly recently in Ghusabhai Raisangbhai Chorasiya v. State of
Gujarat[4], the Court perusing the material on record opined that even if
the illicit relationship is proven, unless some other acceptable evidence
is brought on record to establish such high degree of mental cruelty the
explanation (a) to Section 498-A of the IPC which includes cruelty to drive
the woman to commit suicide, would not be attracted. The relevant passage
from the said authority is reproduced below:-
“True it is, there is some evidence about the illicit relationship and even
if the same is proven, we are of the considered opinion that cruelty, as
envisaged under the first limb of Section 498A IPC would not get attracted.
It would be difficult to hold that the mental cruelty was of such a degree
that it would drive the wife to commit suicide. Mere extra-marital
relationship, even if proved, would be illegal and immoral, as has been
said in Pinakin Mahipatray Rawal (supra), but it would take a different
character if the prosecution brings some evidence on record to show that
the accused had conducted in such a manner to drive the wife to commit
suicide. In the instant case, the accused may have been involved in an
illicit relationship with the appellant no.4, but in the absence of some
other acceptable evidence on record that can establish such high degree of
mental cruelty, the Explanation to Section 498-A which includes cruelty to
drive a woman to commit suicide, would not be attracted.”

16. The concept of mental cruelty depends upon the milieu and the strata
from which the persons come from and definitely has an individualistic
perception regard being had to one’s endurance and sensitivity. It is
difficult to generalize but certainly it can be appreciated in a set of
established facts. Extra-marital relationship, per se, or as such would
not come within the ambit of Section 498-A IPC. It would be an illegal or
immoral act, but other ingredients are to be brought home so that it would
constitute a criminal offence. There is no denial of the fact that the
cruelty need not be physical but a mental torture or abnormal behaviour
that amounts to cruelty or harassment in a given case. It will depend upon
the facts of the said case. To explicate, solely because the husband is
involved in an extra-marital relationship and there is some suspicion in
the mind of wife, that cannot be regarded as mental cruelty which would
attract mental cruelty for satisfying the ingredients of Section 306 IPC.

17. We are absolutely conscious about the presumption engrafted under
Section 113-A of the Evidence Act. The said provision enables the Court to
draw presumption in a particular fact situation when necessary ingredients
in order to attract the provision are established. In this regard, we may
reproduce a passage from Pinakin Mahipatray Rawal (supra):-

“Criminal law amendment and the rule of procedure was necessitated so as to
meet the social challenge of saving the married woman from being ill-
treated or forcing to commit suicide by the husband or his relatives,
demanding dowry. Legislative mandate of the section is that when a woman
commits suicide within seven years of her marriage and it is shown that her
husband or any relative of her husband had subjected her to cruelty as per
the terms defined in Section 498-A IPC, the court may presume having regard
to all other circumstances of the case that such suicide has been abetted
by the husband or such person. Though a presumption could be drawn, the
burden of proof of showing that such an offence has been committed by the
accused under Section 498-A IPC is on the prosecution.”

We have reproduced the aforesaid passage only to highlight that the
Court can take aid of the principles of the statutory presumption.
18. In the instant case, as the evidence would limpidly show, the
wife developed a sense of suspicion that her husband was going to the house
of Ashwathamma in Village Chelur where he got involved with Deepa, the
daughter of Ashwathamma. It has come on record through various witnesses
that the people talked in the locality with regard to the involvement of
the appellant with Deepa. It needs to be noted that Deepa, being not able
to digest the humiliation, committed suicide. The mother and the brother of
Deepa paved the same path. In such a situation, it is extremely difficult
to hold that the prosecution has established the charge under Section 498A
and the fact that the said cruelty induced the wife to commit suicide. It
is manifest that the wife was guided by the rumour that aggravated her
suspicion which has no boundary. The seed of suspicion planted in mind
brought the eventual tragedy. But such an event will not constitute the
offence or establish the guilt of the accused-appellant under Section 306
of the IPC.

19. Having said that we intend to make it clear that if the husband gets
involved in an extra-marital affair that may not in all circumstances
invite conviction under Section 306 of the IPC but definitely that can be a
ground for divorce or other reliefs in a matrimonial dispute under other
enactments. And we so clarify.
20. Consequently, the appeals are allowed. The conviction under Sections
306 and 498-A of the IPC is set aside. The appellant be set at liberty
unless his detention is required in connection with any other case.[right-post]

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