Case BriefsHigh Courts

Delhi High Court: The Bench of Sunil Gaur, J. quashed an FIR filed against the petitioners for offences punishable under Sections 498-A, 406 and 34 IPC.

Petition was filed seeking quashing of the FIR on the basis of mediated settlement between the parties. Jitender Gupta and Deepak Rohilla, Advocates representing the petitioners submitted that the dispute between the parties was matrimonial in nature which was amicably resolved in terms of mediated settlement dated 15-12-2018. It was also brought to notice of the Court that the parties had been divorced by mutual consent.

The High Court relied on Gian Singh v. State of Punjab, (2012) 10 SCC 303 where the Supreme Court had recognised the need of amicable resolution of disputes in cases like the present one. Inclined to allow the petition, the High Court observed, “Since the subject matter of this FIR is essentially matrimonial, which stands mutually and amicably settled between parties, therefore, the continuance of proceedings arising out of the FIR is question would be an exercise in futility.” Taking note of the mediated settlement between the parties and the fact that they have taken divorce by mutual consent, the Court quashed the FIR and proceedings emanating therefrom. [Rohit Bhargava v. State, 2018 SCC OnLine Del 13177, Order dated 20-12-2018]

Case BriefsHigh Courts

Delhi High Court: A Single Judge Bench comprising of Mukta Gupta, J. dismissed a criminal writ petition filed by the husband praying quashing of FIR under Section 498-A IPC and complaint under Section 12 of Protection of Women from Domestic Violence Act, 2005 (DV Act).

The grounds for seeking quashing of the FIR and the complaint was that they were registered to wreak vengeance and were beyond the period of limitation as the parties separated in 2014. It is pertinent to note that the wife had filed a complaint before CAW Cell in 2015 where a settlement was arrived at between the parties at pre-litigation mediation. However, it was not fully acted upon and even after an application the earlier complaint could not be revived. Thus, the filed fresh complaint in 2018.

The High Court was of the view that the FIR was within the period of limitation. Relying on Vanka Radhamanohari v. Vanka Venkata Reddy, (1993) 3 SCC 4 and Asha Ahuja v. Rajesh Ahuja, 2003 SCC OnLine Del 316, the Court held that Section 468 CrPC which deals with “bar to taking cognizance after lapse of period of limitation” is to be read with Section 473 which provides for “extension of period of limitation in certain cases”. Further relying on Arun Vyas v. Anita Vyas, (1999) 4 SCC 690, it was held that is a continuing offence and each occasion of “cruelty” is a new starting point of limitation. As far as a complaint under Section 12 DV Act is concerned, it was noted that it related to the grant of maintenance for the wife and minor child. It was held that “not providing maintenance is a continuous cause of action and even if for three years the wife did not claim maintenance for herself or for the child, the same would not debar her from seeking maintenance under Section 12 DV Act and the complaint thereon cannot be dismissed being barred by limitation”. In such view of the matter, the petition was dismissed. [Anthony Jose v. State (NCT of Delhi), 2018 SCC OnLine Del 12956, decided on 05-12-2018]

Case BriefsHigh Courts

Bombay High Court: A Division Bench comprising of P.N. Deshmukh and Swapna Joshi, JJ. partly allowed an application filed under Section 482 CrPC to quash and set aside FIR registered against the applications under Section 498-A read with Section 34 IPC.

Eleven applications, in this case, included the husband, father-in-law and other relatives of the husband of the non-applicant wife. She had alleged that she was harassed by the applicants in as much as she was abused by them. Specific allegations were levelled against the husband, father-in-law and two others that she was repeatedly asked by her husband to establish physical relations with the other three. The applicants contended that no offence was made out against them even if the allegations in FIR were accepted at face value.

On a bare perusal of FIR, the High Court noted that the wife had made serious allegations against her husband, father-in-law and two others. However, the FIR did not reveal any specific allegation against other relatives particularly her mother-in-law and sisters-in-law. Relying on the case of State of Haryana v. Bhajan Lal, 1992 Supp (1) SCC 335, the Court held that continuation of proceedings against applicants except for the husband, father-in-law and two others would be an abuse of process of law. Therefore, the FIR in regard to such other relatives was directed to be quashed. [Chandrahas Jagatnarayan Choube v. State of Maharashtra,2018 SCC OnLine Bom 5574, decided on 30-11-2018]

Law made Easy

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Introduction

Section 498-A was introduced in the year 1983 to protect married women from being subjected to cruelty by the husband or his relatives. A punishment extending to 3 years and fine has been prescribed. The expression “cruelty” has been defined in wide terms so as to include inflicting physical or mental harm to the body or health of the woman and indulging in acts of harassment with a view to coerce her or her relations to meet any unlawful demand for any property or valuable security. Harassment for dowry falls within the sweep of latter limb of the section. Creating a situation driving the woman to commit suicide is also one of the ingredients of “cruelty”.

Penal Code, 1860

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

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

(a) any 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.

Evidence Act, 1872

Section 113-A: 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 498-A of the Indian Penal Code (45 of 1860).

Classification of offence

The offence under Section 498-A IPC is cognizable (a case in which a police officer may arrest the accused without an arrest warrant) if the information relating to the commission of the offence is given to an officer-in-charge of a police station by the person aggrieved by the offence or by any person related to her by blood, marriage or adoption or if there is no such relative, by any public servant belonging to such class or category as may be notified by the State Government in this behalf. Also, it is a non-bailable offence.

Object and caution

Section 498-A IPC was introduced with the avowed object to combat the menace of dowry deaths and harassment to a woman at the hands of her husband or his relatives. Nevertheless, the provision should not be used as a device to achieve oblique motives, Onkar Nath Mishra v. State (NCT of Delhi), (2008) 2 SCC 561.

Who may file a complaint?

The complaint under Section 498-A may be filed by the women aggrieved by the offence or by any person related to her by blood, marriage or adoption. And if there is no such relative, then by any public servant as may be notified by the State Government in this behalf.

Complaint under Section 498-A — Period of Limitation

As per Section 468 CrPC, a complaint alleging commission of an offence under Section 498-A can be filed within 3 years of the alleged incident. However, Section 473 CrPC enables the Court to take cognizance of an offence after the period of limitation if it is satisfied that it is necessary so to do in the interest of justice.

The essence of the offence in Section 498-A is cruelty. It is a continuing offence and on each occasion on which the woman was subjected to cruelty, she would have a new starting point of limitation, Arun Vyas v. Anita Vyas, (1999) 4 SCC 690.

When can the Court take cognizance?

No Court shall take cognizance of an offence punishable under Section 498-A except upon a police report of facts which constitute such offence or upon a complaint made by the person aggrieved by the offence or by her father, mother, brother, sister or by her father’s or mother’s brother or sister. The Court can also take cognizance if the complaint is made by any other person related to her by blood, marriage or adoption with Court’s permission.

Section 198-A CrPC

Ingredients

For commission of an offence under Section 498-A, following necessary ingredients require to be satisfied: (a) The woman must be married; (b) She must be subjected to cruelty or harassment; and (c) Such cruelty or harassment must have been shown either by husband of the woman or by the relative of her husband, U. Suvetha v. State, (2009) 6 SCC 757.

Husband — Who is

The expression “husband” covers a person who enters into a marital relationship and under the colour of such proclaimed or feigned status of husband subjects the woman concerned to cruelty in the manner provided under Section 498-A, whatever be the legitimacy of the marriage itself for the limited purpose of Section 498-A. The absence of a definition of “husband” to specifically include such persons who contract marriages ostensibly and cohabit with such woman, in the purported exercise of their role and status as “husband” is no ground to exclude them from the purview of 498-A IPC, Reema Aggarwal v. Anupam, (2004) 3 SCC 199.

Woman — Second wife

A Two-Judge Bench of the Supreme Court has held that even a second wife can file a complaint under Section 498-A. In this connection, following words of Arijit Pasayat, J. (talking in terms of Sections 498-A and 304-B IPC and Section 113-B Evidence Act, 1872) assumes importance:

“… The legislature has taken care of children born from invalid marriages. Section 16 of the Marriage Act deals with legitimacy of children of void and voidable marriages. Can it be said that the legislature which was conscious of the social stigma attached to children of void and voidable marriages closed its eyes to the plight of a woman who unknowingly or unconscious of the legal consequences entered into the marital relationship? If such restricted meaning is given, it would not further the legislative intent. …” (para 18, Reema Aggarwal v. Anupam, (2004) 3 SCC 199)

The abovesaid para was quoted with approval in A. Subash Babu v. State of A.P., (2011) 7 SCC 616 wherein the Supreme Court held that Section 498-A is attracted even in the case of allegation of cruelty to second wife.

Woman in a live-in relationship — Whether can file complaint under Section 498-A IPC

Kerala High Court, after considering various decisions of the Supreme Court has held that for an offence under Section 498-A to be committed, the parties must have undergone some sort of ceremonies with the object of getting married. In that case, the parties did not perform any ceremony and just started living together. It was held that a woman in a live-in relationship was not entitled to file a complaint under the section, Unnikrishnan v. State of Kerala,2017 SCC OnLine Ker 12064.

Cruelty and Harassment

Every harassment does not amount to “cruelty” within the meaning of Section 498-A. For the purpose of Section 498-A, harassment simpliciter is not “cruelty” and it is only when harassment is committed for the purpose of coercing a woman or any other person related to her to meet an unlawful demand for property, etc. that it amounts to “cruelty” punishable under Section 498-A IPC, State of A.P. v. M. Madhusudhan Rao, (2008) 15 SCC 582.

Cruelty can either be mental or physical. It is difficult to straitjacket the term cruelty by means of a definition because cruelty is a relative term. What constitutes cruelty for one person may not constitute cruelty for another person, G.V. Siddaramesh v. State of Karnataka, (2010) 3 SCC 152.

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, Gananath Pattnaik v. State of Orissa, (2002) 2 SCC 619.

Relative of husband — Who is

In order to be covered under Section 498-A IPC one has to be a “relative” of the husband by blood, marriage or adoption, Vijeta Gajra v. State (NCT of Delhi), (2010) 11 SCC 618. 

A girlfriend or a concubine being not connected by blood or marriage is not a “relative” of the husband as per Section 498-A, U. Suvetha v. State, (2009) 6 SCC 757.

 Section 498-A — Proof of

Proof of the wilful conduct actuating the woman to commit suicide or to cause grave injury or danger to life, limb or health, whether mental or physical, is the sine qua non for entering a finding of cruelty against the accused person, Gurcharan Singh v. State of Punjab, (2017) 1 SCC 433.

In a criminal trial, the charges made against the accused must be proved beyond all reasonable doubts. This requirement does not stand altered in case of Section 498-A IPC. Before recording a finding of guilt, the Court must satisfy itself that the deceased was not hypersensitive, State of W.B. v. Orilal Jaiswal, (1994) 1 SCC 73.

Section 498-A and “Dowry Demand”

Dowry demand is included in the “unlawful demand” as contemplated under Explanation (b) of Section 498-A; however, it need not be the only demand. The Supreme Court in Modinsab Kasimsab Kanchagar v. State of Karnataka, (2013) 4 SCC 551, held that a demand of Rs 10,000 towards repayment of a society loan, though not a dowry demand, was an unlawful demand sufficient to attract Section 498-A.    

Past events of cruelty included

Section 498-A includes in its amplitude past events of cruelty, Kaliyaperumal v. State of T.N., (2004) 9 SCC 157.

Section 498-A and presumption under Evidence Act

Section 113-A, Evidence Act mandates 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 that such suicide has been abetted by the husband or the relative, Pinakin Mahipatray Rawal v. State of Gujarat, (2013) 10 SCC 48.

Non-compoundable offence — Quashing of proceedings — Reduction of sentence

Section 498-A IPC is non-compoundable. Non-compoundable offences are those where the court cannot record the compromise between the parties and drop charges against the accused.

However, if there is a genuine compromise between husband and wife, criminal complaints arising out of matrimonial discord can be quashed by the High Court under Section 482 CrPC (inherent powers), even if the offences alleged therein are non-compoundable, because such offences are personal in nature and do not have repercussions on the society unlike heinous offences like murder, rape, etc.

In case a conviction have been recorded and sentence is awarded under Section 498-A, and if the Court feels that the parties have a real desire to bury the hatchet, in the interest of peace, it can reduce sentence of the accused to period of sentence already undergone, Manohar Singh v. State of M.P., (2014) 13 SCC 75

Section 498-A and Protection of Women from Domestic Violence Act, 2005

Even before a criminal court where a case under Section 498-A is pending, if allegation is found genuine, it is always open to the appellant to ask for reliefs under Sections 18 to 22 of the Domestic Violence Act and interim relief under Section 23 of the said Act, Juveria Abdul Majid Patni v. Atif Iqbal Mansoori, (2014) 10 SCC 736.

(Domestic Violence Act, 2005 provide for a remedy under the civil law which is intended to protect the women from being victims of domestic violence occurring within the family and to prevent the occurrence of domestic violence in the society. It makes provision for a protection order under Section 18, residence order under Section 19, monetary relief under Section 20, custody order under Section 21, compensation under Section 22 and interim relief under Section 23)

Misuse of the provision and its Constitutionality

Many instances have come to light where the complaints are not bona fide and have been filed with oblique motive. In such cases acquittal of the accused does not in all cases wipe out the ignominy suffered during and prior to trial. Sometimes adverse media coverage adds to the misery. By misuse of the provision a new legal terrorism can be unleashed. The provision is intended to be used as a shield and not as an assassin’s weapon. However, a mere possibility of abuse of a legal provision does not invalidate it. Section 498-A is constitutional, Sushil Kumar Sharma v. Union of India, (2005) 6 SCC 281.

Directions of the Supreme Court

Arnesh Kumar v. State of Bihar, (2014) 8 SCC 273

In an endeavour to ensure that police officers do not arrest the accused unnecessarily and Magistrate do not authorise detention casually and mechanically in cases under Section 498-A IPC, the Court gave certain directions (however, the directions apply also to other cases where offence is punishable with imprisonment of not more than seven years) which include:

(a) Police officers not to automatically arrest the accused when a case under 498-A IPC is registered. They should satisfy themselves about the necessity of arrest under parameters flowing from Section 41 CrPC (the judgment lays down the parameters).

(b) Police officers shall fill the check list (containing specified sub-clauses under Section 41(1)(b)(ii) CrPC) and furnish the reasons and material necessitating the arrest.

(c) The Magistrate will authorise detention only after recording its satisfaction on the report furnished by the police officers.

(d) If the police officers fail to comply with the directions, they will be liable for departmental action as well as punishment for contempt of Court.

(e) Failure of the Judicial Magistrate to comply with the directions will render him liable for departmental action by the appropriate High Court.

Rajesh Sharma v. State of U.P., 2017 SCC OnLine SC 821

In this case, too, the Supreme Court gave directions to prevent misuse of Section 498-A IPC which were further modified in Social Action Forum for Manav Adhikar v. Union of India, 2018 SCC OnLine SC 1501. These directions include:

(a) Complaints under Section 498-A and other connected offences may be investigated only by a designated Investigating Officer of the area.

(b) If a settlement is reached between the parties, it is open to them to approach the High Court under Section 482 seeking quashing of proceedings or any other order.

(c) If a bail application is filed with at least one day’s notice to the Public Prosecutor/complainant, the same may be decided as far as possible on the same day. Recovery of disputed dowry items may not, by itself, be a ground for denial of bail if maintenance or other rights of wife/minor children can otherwise be protected.

(d) In respect of persons ordinarily residing out of India impounding of passports or issuance of Red Corner Notice should not be a routine.

(e) These directions will not apply in case of tangible physical injuries or death.

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† Assistant Editor (Legal), EBC Publishing Pvt. Ltd.

Case BriefsHigh Courts

Jammu & Kashmir High Court: A Single Judge bench comprising of Sanjay Kumar Gupta, J. dismissed the petitions filed by the accused petitioner and his brother under Section 561-A CrPC, seeking quashing of charges filed against them under Sections 304-B and 498-A of the RPC.

The accused petitioner Rohit Singh married one Radha Sharma, according to Hindu rites and ceremonies on 07-03-2014. Within one year of their marriage, there arose matrimonial disputes which resulted in Radha (hereinafter referred to as the “deceased”) committing suicide by hanging herself at her in-laws’ house on 18-03-2016. Proceedings were initiated and after investigation, chargesheet was filed under Sections 304-B, 306 and 498 of RPC. The basis for filing of the aforesaid petitions was that pursuant to a deed of disinheritance executed by the accused’s father, the accused petitioner and the deceased had been living separately from her in-laws and therefore, there was no proximity between the demand of dowry and cause of death of the deceased.

The Court observed that the death in case at hand had taken place “otherwise than under normal circumstances” within two years of the deceased’s marriage at her in-laws’ house. There was evidence that the accused were demanding dowry in the form of plot and other articles from the deceased; her dead body was found hanging at her in-laws’ house; there were witness accounts seeing the accused entering and leaving the house where dead body was found; post-mortem report of deceased suggested death by asphyxia due to hanging, and ligature mark was found around her neck.

The High Court, relying on Umesh Kumar v State of Andhra Pradesh, (2013) 10 SCC 591, held that while framing of charges, the Court has to evaluate as to whether on the basis of materials and documents on record, there is a prima facie case to proceed against the accused. At this stage, the Court is not required to appreciate whether the material produced is sufficient or not for convicting the accused.

In view of the incriminating circumstances, the Court refused to quash the charges against accused. [Rohit Singh v State of Jammu & Kashmir, CRMC No. 607 of 2017, dated 14-09-2018]

Case BriefsSupreme Court

Supreme Court: The Bench comprising of S.A. Bobde and L. Nageswara Rao, JJ. allowed a criminal petition filed against the judgment of Hyderabad High Court whereby appellants’ petition under Section 482 CrPC was dismissed.

Respondent 2-wife filed a complaint alleging harassment by her husband and his relatives including the appellants herein. The appellants were maternal uncles of the husband. Pursuant to the said complaint, an FIR was filed under Section 498-A IPC. The appellants filed the petition before the High Court for quashing the FIR. However, the High Court, vide the judgment impugned, dismissed the petition of the appellants. Aggrieved thus, the appellants filed the instant appeal.

The Supreme Court perused the charge sheet and found that the appellants were not the immediate family members of the husband. Except for the statement that they support the husband who was harassing the wife, nothing showed their involvement in the offence alleged. The Court referred to Kans Raj v. State of Punjab, (2000) 5 SCC 207 and Kailash Chandra Agarwal v. State of U.P., (2014) 16 SCC 551 and observed that the relatives of the husband should not be roped in on the basis of omnibus allegations unless specific instances of their involvement in the crime are made out. On the facts and circumstances of the present case, the Court held that not even a prima facie case was made out against the appellants. Resultantly, the appeal was allowed; the judgment impugned was set aside; and criminal proceedings qua the appellants, in the matter concerned, were quashed. [K. Subba Rao v. State of Telangana, 2018 SCC OnLine SC 1080, dated 21-08-2018]

Case BriefsHigh Courts

Delhi High Court: A Single Judge Bench comprising of Rajiv Sahai Endlaw, J. allowed an appeal filed under Section 28 of Hindu Marriage Act, 1955 against the judgment of the Additional District Judge whereby the divorce petition filed by the husband was dismissed.

One of the grounds claimed by the husband as an instance of cruelty meted out by the wife was that she filed false complaints against him under Sections 406 and 498-A IPC. It is pertinent to note that the appellant-husband was acquitted of both the charges and no appeal was filed thereagainst by the wife. The husband filed a petition for divorce under Section 13(1)(ia) and (ib) of the HMA which was dismissed by the Additional District Judge. The wife submitted that she would consent to a decree for dissolution of marriage only if the husband agrees to her other demands. Aggrieved thus, the husband preferred the instant appeal.

The High Court perused the record and took notice of the complaint made by the wife against the husband and also the order of acquittal passed in his favour. Reference was also made to Vishwanath Agrawal v. Sarla Vishwanath Agrawal (2012) 7 SCC 288 and Shobha Rani v. Madhukar Reddi, (1988) 1 SCC 105. The Court found that the complaints filed by the wife were false. It was held that the conduct of wife of using her consent to dissolution of marriage by a decree of divorce, to gain an advantage in other litigation, also constitutes cruelty. It shows that the respondent wife also was not interested in matrimonial bond but still wanted to keep the husband bound therewith, till he agrees to her other demands. In the aforesaid state of affairs, the appeals were allowed and the marriage between the parties was dissolved. [Daulat Ram Gupta v. Usha Gupta,2018 SCC OnLine Del 10376, dated 30-07-2018]

Case BriefsHigh Courts

Bombay High Court: A Single Judge Bench comprising of Sarang V. Kotwal, J., dismissed an appeal concerning the aspect of cruelty being taken on a mere submission that the deceased was ill-treated as the deceased failed to cook properly.

The present case deals with a very interesting factual matrix and submissions being made by the prosecution. The accused in the present case was charged under Sections 498A and 306 read with Section 34 of IPC, for which the learned judge had acquitted all the accused persons but further the State of Maharashtra had preferred an appeal against the same.

The submissions of the prosecution had two primary folds, which were: Accused being in an illicit relationship with his sister-in-law and deceased facing ill treatment due to failure to cook properly; and based on these grounds Nanda, i.e. the deceased had consumed poison.

Therefore, the High Court while concluding its judgment stated that the prosecution failed to prove the illicit relationship of the accused by placing no evidence on record. Also for the other allegation of ‘not cooking-properly’, the Court stated that “Telling to cook properly or to do household work properly, by itself, would not mean that a person was ill-treated.” No further evidence was placed to show ill-treatment which inclined the Court to not dismiss the Appeal. [State of Maharashtra v. Vijay Dhondiram Shinde,2018 SCC OnLine Bom 2047, decided on 01-08-2018]

Case BriefsHigh Courts

Bombay High Court: A Single Judge Bench comprising of Manish Pitale, J., acquitted the appellant-husband who was convicted by the trial court Section 498-A and other sections of IPC.

The appellant was married to the deceased and within one year of marriage she set herself on fire and committed suicide. It was alleged that the appellant and other co-accused demanded Rs 20,000 from her for treatment of appellant’s father. The trial court convicted the appellant but acquitted the co-accused.

The High Court observed, inter alia, that there were no separate or specific allegations made against the appellant. The trial court had found that the evidence on record was not sufficient to prove that case against the co-accused persons but the same evidence, the appellant was convicted. Moreover, the said demand of Rs 20,000 for treatment of his father such as to bring it under cruelty mentioned in Section 498-A IPC. In such circumstances, the High Court was of the view that conviction of the appellant, even when the co-accused were acquitted on the same evidence, was liable to be set aside. Therefore, the appeal was allowed and the appellant was acquitted of the charges framed against him. [Balaji v. State of Maharashtra,2018 SCC OnLine Bom 1955, dated 02-08-2018]