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supreme court judgement on adultery.

“Adultery is not a Cruelty.

 

EXTRA-MARITAL RELATIONSHIP
”  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.

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 :-”

 

 

 

 

REPORTABLE
IN THE SUPREME COURT OF INDIA

CRIMINAL APPEALLATE JURISDICTION

CRIMINAL APPEAL NO.811 OF 2004

Pinakin Mahipatray Rawal Appellant

Versus

State of Gujarat Respondent

 

J U D G M E N T
K.S. RADHAKRISHNAN, J.

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. 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 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. The object is to preserve
marital harmony by 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. For proving a claim for 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 :-

“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.
(Pinaki Chandra Ghose)
New Delhi,
September 09, 2013.

 

 

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