Andhra HC (Pre-Telangana)
Besai Venkata Ramana Murthy vs State on 23 December, 2002
Equivalent citations: 2003(2)ALD(CRI)33, 2003(2)ALT(CRI)367, 2003CRILJ4708
ORDER T. Ch. Surya Rao, J.
1. The revision petitioner stands convicted under Section 498-A of the Indian Penal Code ('the IPC' for brevity) and sentenced to undergo rigorous imprisonment for one year and further sentenced to pay a fine or Rs. 500/- and in default to suffer simple imprisonment for two months by the learned II Metropolitan Magistrate, Visakhapatnam, by her judgment dated 10-11-1998 in C.C. No. 411 of 1997 and the same has been affirmed by the learned Sessions Judge, Mahila Court, Visakhapatnam, in Criminal Appeal No. 169 of 1998 dated 11-5-2000.
2. The revision petitioner is the 1st accused, the case against the petitioner was that this his marriage with PW-1 was performed on 25-5-1989 at Tirupati and that at the time of marriage on demand from the petitioner, PW-3 the father of PW-1 paid an amount of Rs. 40,000/- towards dowry and gave six tulas gold jewellery to PW-1. The petitioner and PW-1 lived together happily for two years and that in the year 1991, the petitioner developed illicit intimacy with A4 and started harassing and ill-treating PW-1. PW-1 therefore, gave a report against the petitioner in IV Town Police Station in the year 1992 and it ended in compromise when the petitioner/A1 had given an undertaking that he would live with PW-1 properly. A2 to A4 also gave a similar undertaking. However, the petitioner continued his Illicit contacts with A4 with the connivance of A2 and A3 and kept her at Naupada and was making periodical visits. Subsequently, a male child was born to A4. The petitioner not only neglected PW-1 and her daughter, but also insisted her to live in harmony with A4, and threatened to kill PW-1 and her daughter, if she disagreed with his proposal. The petitioner misappropriated the gold jewellery of PW-1 and frittered away the sale proceeds. He used to insist PW-1 to take divorce and beat her in that connection and further harassed to bring more money from her parents towards dowry.
3. At the time of trial eight witnesses were examined in support of the charges under Sections 498-A and 506 of IPC and Exs.P1 and P2 were got marked. A2 and 3 were discharged and A1 and A4 alone were tried for both the offences. At the culmination of the trial, the trial Court after having considered the evidence on record convicted the petitioner alone under Section 498-A of the IPC and sentenced him as aforesaid and acquitted him of the other charge under Section 506 of the IPC. A4 was also acquitted of both the charges.
4. The evidence available on record is that PWs-1 to PW-1 is the defacto complainant. PW-2 is the house owner where the revision petitioner and PW-1 used to reside for rent. PW-3 is the father of PW-1. PW-4 is a mediator for the settlement of dispute between the petitioner and PW-1. PW-5 is a neighbour of PW-1. PW-6 is another elder and PWs-7 and 8 are the Investigating Officers.
5. A perusal of the evidence of PW-1 shows that after the marriage, she and the petitioner lived together happily for two years till the birth of her daughter and thereafter, the petitioner developed illicit intimacy with A4 and deserted her and her daughter and that when she reported the matter to the elders they asked the petitioner to sever his connection with A4, but he did not do so and therefore the elders advised her to lodge a report with the police and that on the advice of the Mahila Mandali, she lodged a report with the police, wherein a compromise was affected. The petitioner admitting his guilt undertook that he would look after PW-1 properly. A4 also gave an undertaking that she would leave the petitioner and go to her native place. Thereafter, PW-1 and the petitioner lived happily in a rented house for a period of nine months. During that period, he met with an accident and after he became healthy again, left PW-1 at the house and therefore, she had to lodge a report to the police in Ex.P1.
The evidence further shows that A1 used to insist PW-1 to live in harmony with A4. There has been no whisper in the entire evidence of PW-1 about any harassment or cruelty meted out to her by the petitioner in connection with any demand for dowry or otherwise. The evidence of PWs-2 to 4 the effect that the petitioner used to insist his wife PW-1 to bring more money, though voluminous, cannot be accepted without any pinch of salt having regard to the fact that PW-1 herself did not depose in her evidence about the same. The whole evidence therefore, appears to be that the petitioner developed illicit intimacy with A4 and therefore, he left PW-1 and her minor daughter and neglected them.
6. As seen from the evidence of PW-1 she filed a maintenance case against the petitioner before the Judicial Magistrate of First Class, Tekkali and maintenance was granted to her the petitioner has been residing in Tekkali, whereas PW-1 has been residing in Visakhapatnam along with her parents. The evidence further discloses that it is a case of inter-caste marriage between PW-1 and the petitioner. Both the Courts below were of the view that the acts of the petitioner by developing illicit intimacy with A4, depriving thereby the matrimonial happiness to PW-1 and making her further to live alone would have caused the necessary to PW-1 as envisaged under Section 498-A of the IPC.
7. The moot question that falls for determination is as to whether the illicit intimacy between the revision petitioner and A4 could be said to have subjected the wife to cruelty as envisaged under Section 498-A of the IPC ?
8. It is apposite here therefore, to consider Section 498-A of the IPC, which reads as under :
"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;
(b) harassment of woman, where and 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;"
9. The expression "cruelty" has been defined for the purpose of Section 498-A of the IPC. It is in two parts. The first part envisages the wilful conduct on the part of the husband or his relative towards the woman, which may likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical). The expression wilful conduct, therefore, requires to be understood in conjunction with the other requirement, viz. the consequence of such a conduct on the wife. The second part contemplates the harassment of the woman, which harassment shall be with a view to coerce the woman or any person related to her to meet any unlawful demand for any property or valuable security or is on account of their failure to meet such demand. Therefore, harassment must be accompanied by unlawful demand for property or valuable security.
10. Very recently the Apex Court in Mohd. Hoshman v. State of A.P., 2002 AIR SCW 3795 : (2002 Cri LJ 4124) held in para 6 thus :
"Whether one spouse has been guilty of cruelty to the other is essentially a question of fact. The impact of complaints, accusations or taunts on a person amounting to cruelty depends on various factors like the sensitivity of the individual victim concerned, the social background, the environment, education etc. Further, mental cruelty varies from person to person depending on the intensity of sensitivity and the degree of courage or endurance to withstand such mental cruelty. In other words, each case has to be decided on its own facts to decide whether the mental cruelty was establised or not. The High Court in the present case, having regard to the facts found and circumstances stated, rightly concluded that the continuous taunting or teasing the deceased by the appellants on one ground or the other amounted to mental cruelty drawing her to end her life."
11. It is obvious, therefore, that although it is a question of fact to be decided with reference to the facts of each case but the cruelty must be the result of an act on the part of the offender which must have an impact on the mind of the victim having regard to the background of the case.
12. It is not unknown that there may be bickering in the marital life between the husband and wife and consequential outbursts either by the husband or by the wife. The bickering in between the husband and wife may be on account of the husband giving to bad ways and becoming an addict to vices like woman and wine. The bickering may also occur on account of the husband becoming spend thrift and squandering the properties. Such bickering between the spouses might lead to disharmony in the family life. This disharmony may be on account of the husband giving to bad ways or in sequel to his conduct towards his wife on account of such bad vices. Undoubtedly, therefore, the husband developing vices ipso facto would not tantamount to cruelty. Therefore, the conduct on the part of the husband must be something more than the husband addicting to vices. That is the reason why the expression 'wilful conduct' has been aptly used by the Legislature. The conduct on the part of the husband alone is not sufficient, but it should be accompanied by the necessary intention on the part of the husband. In that view of the matter, the word 'wilful' gains much significance in the context. Therefore, the wilful conduct must be other than mere desertion of the wife or the children by the husband. Otherwise every act of the husband in a family bickering between the spouses should have to be considered as wilful conduct on his part attracting the offence of cruelty punishable under Section 498-A of the IPC. The problem can be approached in another angle viz. the reaction on the part of the woman: Some women are sensitive and some are hypersensitive to the given situation. Different people will react in a different way to the given situation. But what is required to be seen is whether the conduct on the part of the husband would induce a similarly circumstanced woman in a given society to commit suicide or not.
13. The view expressed by both the Courts below that the conduct of the petitioner in having developed illicit intimacy with A4 and deserting thereby PW-1 and her minor child and making her to live alone would amount to harassment seems to be not correct on a plain understanding of the second part of the explanation defining "cruelty", which is an essential ingredient to constitute the offence punishable under Section 498-A of the IPC. Therefore, the first part alone remains for consideration. Obviously in this case the conduct on the part of the petitioner is not said to have resulted in grave injury or danger to life, limb or health of PW-1. There has been no whisper in the entire evidence of PW-1 about the consequence of such a conduct on the part of the petitioner affecting the health of PW-1 either physically or mentally. Therefore, it remains to be seen as to whether it would have induced PW-1 to entertain the idea of committing suicide or not. The reaction on the part of a woman in the context gains significance and that reaction again shall not be on account of sensitivity of the woman or her hypersensitivity to a given situation in the family as discussed hereinabove. Here in the instant case, on account of the petitioner developing illicit itimacy with another woman and the consequential desertion 81 PW-1 and her child has neither induced PW-1 to resort to the act of committing suicide or an attempt in regard, thereto or has resulted in grave danger to her life, limb or health either mental or physical. In other words, there has been no reaction whatsoever on the part of PW-1 on account of the alleged conduct of the petitioner.
14. The Courts below placed reliance upon the judgment of the Apex Court in State of West Bengal v. Orilal Jaiswal . That was a case where the woman committed suicide on account of her husband and mother-in-law caused severe mental torture to be deceased wife by telling that that she is a woman of evil luck and swallowed her own baby and she should commit suicide and subjected her to physical assault. It was a clear case where the woman was subjected to abuses, humiliation and mental torture from the very beginning of her marriage life, which ultimately forced her to commit suicide. In that context, the Apex Court held that the acts on the part of the mother-in-law were quite likely to destroy the normal frame of mind of the deceased and to drive her to frustration and mental agony and to end her life by committing suicide.
15. Another judgment of this Court in Sanagala Yagna Sree v. State of Andhra Pradesh (1996 Cri LJ 1249) has been relied upon by both the Courts below. That was a case where the Illegal relationship of a husband with another woman was accompanied by continuous ill-treatment and torture. This Court under the circumstances held that the presumption of cruelty could be raised.
16. In the instant case, nothing is discernible from the evidence on record that the petitioner developing illicit intimacy with A.4 has created the necessary impact on the mind of PW-1 so as to conclude that it is nothing but a mental cruelty.
17. For the foregoing reasons, the conviction and sentence of the petitioner for the offence under Section 498-A of the IPC as recorded by both the Courts below is not sustainable in law.
18. The Criminal Revision Case is, therefore, allowed and the conviction and sentence passed by the III Metropolitan Magistrate, Visakhapatnam, and confirmed by the learned Sessions Judge, Mahila Court, Visakhapatnam, against the revision petitioner are hereby set aside.