Section 498A IPC : Husband during the Subsistence of Marriage had Contracted Second Marriage and Started Living with Another Woman by itself may not amount to Cruelty

Indian Penal Code, 1860 - S. 498A - Husband or relative of husband of a woman subjecting her to cruelty - Mere fact that the petitioner during the subsistence of marriage had contracted second marriage and started living with another woman by itself may not amount to cruelty for the purpose of offence punishable under Section 498-A IPC. Even though this act would constitute cruelty for the purpose of judicial separation or dissolution of marriage.

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

Coram The Hon’ble Mr. Justice Tarlok Singh Chauhan, Judge.

Cr. Revision No. 143 of 2009 Reserved on: 12.03. 2018.

Date of decision: 16.03.2018

Bhoop Singh ...Petitioner.

Versus

State of Himachal Pradesh …Respondent.

For the Petitioner : Mr. Tara Singh Chauhan, Adv.

For the Respondent : Mr. Vinod Thakur and Mr. Sudhir Bhatnagar, Addl. A.Gs. with Mr. Bhupinder Thakur, Dy. A.G.

Justice Tarlok Singh Chauhan, Judge

The present criminal revision petition under Section 397 read with Sections 401 and 482 of the Code of Criminal Procedure (for short the ‘Code’) is directed against the judgment passed by learned Sessions Judge, Sirmaur District at Nahan, on 26.08.2009 in Criminal Appeal No. 15-Cr.A/10 of 2006 whereby he dismissed the appeal filed by the petitioner and affirmed the judgment of conviction and sentence passed by learned Sub Divisional Judicial Magistrate, Rajgarh, District Sirmaur, H.P., on 24.07.2006/26.07.2006, in Cr. Case No. 46/2 of 2005, whereby the petitioner was convicted and sentenced to undergo rigorous imprisonment of 3 years and pay a fine of Rs.5,000/- and in default of payment of fine to further undergo simple imprisonment for two months.

2. The prosecution story, in brief, is that the complainant is the wife of the petitioner, who claimed to have been treated with cruelty by the petitioner and filed a complaint against him which ultimately culminated into FIR No. 65/2005. In the complaint, it was stated that the complainant had studied up to second standard and was married to the petitioner about 8 years ago and out of the wedlock two children were born. At the time of lodging of FIR her third child about 8 months was in her womb. She complaint that during first four years of her marriage she was kept well by the husband but thereafter he started threatening her that he would re-marry to another girl and, therefore, she should leave his house and go to her parents house. At this, she told her husband that she had already given birth to a male and a female child and third child was in womb, what else he wanted from her. Besides that she was from a very poor agriculturist family and had been working at his house but the petitioner did not mend his ways. He started maltreating her by keeping her short of food and clothings and started administering beatings. Initially, she had not disclosed this fact to her parents with the hope that her husband would mend himself, but she came to know that petitioner had secret contact with some other girl. She further reported that three months ago she was given kicks and fist blow by the petitioner and then her father had taken her to his house alongwith her two minor children and thereafter she had been residing at her parents house alongwith her children for the last about five months and had given birth to the third child.

3. On the basis of the complaint, investigation was carried out and since prima facie case for an offence punishable under Section 498-A was made out, the petitioner was chargesheeted accordingly to which he pleaded not guilty.

4. The prosecution in order to prove its case, examined as many as 9 witnesses and closed its evidence and thereafter the statement of the petitioner was recorded under Section 313 Cr.P.C. where he denied to have treated the complainant with cruelty and stated that a false case had been registered against him. He produced one witness Surender Prakash in his defence.

5. The learned trial Court after recording evidence and evaluating the same, convicted and sentenced the petitioner as aforesaid.

6. The petitioner filed an appeal before the learned Sessions Judge, Simaur Distrct at Nahan however, the same came to be dismissed.

7. It is against this judgment of conviction and sentence, the petitioner has filed the instant revision petition on the ground that the findings recorded by learned Courts are perverse, therefore, liable to be set aside. I have heard learned counsel for the parties and have gone through the records of the case.

8. At the outset, it may be observed that the revisionary jurisdiction of this Court under Section 397 Cr.P.C. is extremely limited and this Court would only interfere in case the petitioners have been convicted and sentenced by examining the material placed on record with a view to ascertain that the judgments so rendered by the learned Courts below are not perverse and are based on the correct appreciation of evidence on record. This Court would definitely interfere in case it comes to the conclusion that there is a failure of justice and misuse of judicial mechanism or procedure or where the sentence awarded is not correct. After all, it is the salutary duty of this Court to prevent the abuse of justice or miscarriage of justice or/and correct irregularities, incorrectness committed by the inferior Criminal Court in its judicial process or illegality of sentence or order. This Court has very limited revisionary jurisdiction as held by this Court in Criminal Revision No. 50 of 2011, titled as Rajinder Singh vs. State of Himachal Pradesh, decided on 13.9.2017, wherein the scope of criminal revision has been delineated in the following manner:-

“In Amur Chand Agrawal vs. Shanti Bose and another, AIR 1973 SC 799, the Hon’ble Supreme Court has held that the revisional jurisdiction should normally be exercised in exceptional cases when there is a glaring defect in the proceedings or there is a manifest error of point of law and consequently there has been a flagrant miscarriage of justice.

In State of Orissa vs. Nakula Sahu, AIR 1979, SC 663, the Hon’ble Supreme Court after placing reliance upon a large number of its earlier judgments including Akalu Aheer vs. Ramdeo Ram, AIR 1973, SC 2145, held that the power, being discretionary, has to be exercised judiciously and not arbitrarily or lightly. The Court held that “judicial discretion, as has often been said, means a discretion which is informed by tradition methodolised by analogy and discipline by system”.

In Pathumma and another vs. Muhammad, AIR 1986, SC 1436, the Hon’ble Apex Court observed that High Court “committed an error in making a re-assessment of the evidence” as in its revisional jurisdiction it was “not justified in substituting its own view for that of the learned Magistrate on a question of fact”.

In Bansi Lal and others vs. Laxman Singh, AIR 1986 SC 1721, the legal position regarding scope of revisional jurisdiction was summed up by the Hon’ble Supreme Court in the following terms: 

“It is only in glaring cases of injustice resulting from some violation of fundamental principles of law by the trial court, that the High Court is empowered to set aside the order of the acquittal and direct a re-trial of the acquitted accused. From the very nature of this power it should be exercised sparingly and with great care and caution. The mere circumstance that a finding of fact recorded by the trial court may in the opinion of the High Court be wrong, will not justify the setting aside of the order of acquittal and directing a re-trial of the accused. Even in an appeal, the Appellate Court would not be justified in interfering with an acquittal merely because it was inclined to differ from the findings of fact reached by the trial Court on the appreciation of the evidence. The revisional power of the High Court is much more restricted in its scope.” 

In Ramu @ Ram Kumar vs. Jagannath, AIR 1991, SC 26, Hon’ble Supreme court cautioned the revisional Courts not to lightly exercise the revisional jurisdiction at the behest of a private complainant.

In State of Karnataka vs. Appu Balu, AIR 1993, SC 1126 = II (1992) CCR 458 (SC), the Hon’ble Supreme Court held that in exercise of the revisional powers, it is not permissible for the Court to re-appreciate the evidence.

In Ramu alias Ram Kumar and others vs. Jagannath AIR 1994 SC 26 the Hon’ble Supreme Court held as under: 

“It is well settled that the revisional jurisdiction conferred on the High Court should not be lightly exercised particularly when it was invoked by a private complaint.” 

In Kaptan Singh and others vs. State of M.P. and another, AIR 1997 SC 2485 = II (1997) CCR 109 (SC), the Hon’ble Supreme Court considered a large number of its earlier judgments, particularly Chinnaswami vs. State of Andhra Pradesh, AIR 1962 SC 1788 ; Mahendra Pratap vs. Sarju Singh, AIR 1968, SC 707; P.N. G. Raju vs. B.P. Appadu, AIR 1975, SC 1854 and Ayodhya vs. Ram Sumer Singh, AIR 1981 SC 1415 and held that revisional power can be exercised only when “there exists a manifest illegality in the order or there is a grave miscarriage of justice”.

In State of Kerala vs. Puttumana Illath Jathavedan Namboodiri (1999) 2 SCC 452, the Hon’ble Supreme Court held as under: 

“In Its revisional jurisdiction, the High Court can call for and examine the record of any proceedings for the purpose of satisfying itself as to the correctness, legality or propriety of any finding, sentence or order. In other words, the jurisdiction is one of Supervisory Jurisdiction exercised by the High Court for correcting miscarriage of justice. But the said revisional power cannot be equated with the power of an Appellate Court nor can it be treated even as a second Appellate Jurisdiction. Ordinarily, therefore, it would not be appropriate for the High Court to re-appreciate the evidence and come to its own conclusion on the same when the evidence has already been appreciated by the Magistrate as well as the Sessions Judge in appeal, unless any glaring feature is brought to the notice of the High Court which would otherwise tantamount to gross miscarriage of justice.” 

In State of A.P. vs. Rajagopala Rao (2000) 10 SCC 338, the Hon’ble Supreme Court held as under: 

“The High Court in exercise of its revisional power has upset the concurrent findings of the Courts below without in any way considering the evidence on the record and without indicating as to in what manner the courts below had erred in coming to the conclusion which they had arrived at. The judgment of the High Court contains no reasons whatsoever which would indicate as to why the revision filed by the respondent was allowed. In a sense, it is a non-speaking judgment.”

9. Having set out the legal parameters for exercise of revisional jurisdiction, it cannot be denied that in case findings recorded by the learned Courts below are perverse then obviously this Court would be entitled to interfere with the findings so recorded.

10. It would be noticed that the complainant appeared as PW3. Since, the marriage between the parties has not been disputed, therefore, I am not adverting to the statements, so far as it relates to the solemnization of marriage. This witness further stated that after about 4 years of her marriage, the behaviour of her husband became quarrelsome and he kept telling her to go to her parents house as he wanted to marry another girl. Thereafter, he started giving beatings to her. Lateron, she disclosed these facts to her father, who had come to her matrimonial house and took her alongwith two minor children to his house where after some time she delivered her third child. She further stated that she was given kicks and fist blows at the time when her third child was in womb. She suffered bodily pain on account of beatings and she was taken to hospital at Solan by her father for treatment. She further stated that petitioner had now now married one Kavita resident of village Gehnog and had been residing with him and out of their illegal and immoral association, a child was born.

11. PW4 is the father of the complainant who has duly corroborated the version put-forth by the complainant and reiterated that even though he has advised his daughter to keep residing in the house of the petitioner but it was on account of severe beatings administered to her, that he withdrew his daughter from the house of the petitioner alongwith two minor children. He further deposed that he had sent Kedar Singh, Thamchu Ram and some other persons to the house of the petitioner to make him understand, but in vain as the petitioner had now re-married another girl who was residing with him.

12. PW5- Thamchu Ram corroborated the version putforth by PW4-Dhursu Ram and stated that PW4 had taken him and other persons to the house of the petitioner so as to ask him to desist from giving beatings to the complainant but he did not agree and became adamant and he eventually re-married another girl.

13. PW7 Sant Ram is the witness whose daughter is alleged to be residing with the petitioner as his second wife. He deposed on oath that he had two sons and four daughters. His eldest daughter was Kavita Devi and had ran away from the house and married the petitioner about one year ago. In fact, it was the petitioner who had taken her with him. He came to know from others that his daughter had given birth to a child. In crossexamination he stated that he did not know as to who resides at the house of the petitioner as he had never gone there but he had heard from others that his daughter is residing with the petitioner.

14. In addition to the aforesaid witnesses, Jagat Ram appeared as PW1 and stated that he had worked as iron smith in the house of the petitioner. He stated that complainant had never made any grievance about the misconduct of her husband. He was declared hostile and was cross-examined by the learned Public Prosecutor wherein he reiterated that he was never disclosed by the complainant that she was administered beating by the petitioner nor she had asked him to convey this message to her father Dhursu Ram.

15. PW2 Kedar Singh denied that the father of the complainant had taken him and other persons to the house of the petitioner so that they could prevail upon the petitioner to mend his way and behave properly. However, in crossexamination, this witness admitted that he had asked the petitioner that he should live peacefully with the complainant and he should bring up his children and wife properly. He also admitted that on 01.01.2005 Dhursu Ram had taken the complainant and her children to his house.

16. Now, adverting to the testimony of Surender Prakash, who appeared as DW1, it would be noticed that he had stated that the fault was on the part of the father of the complainant when he asked the petitioner to resides as ‘Ghar Jawai’ at his house. He further deposed that the complainant was residing at her father house according to the wish of her father and further stated that the petitioner had not re-married to one Kavita, daughter of Sant Ram. However, in cross-examination, this witness categorically stated that the complainant was married to the petitioner about 7-8 years back and resided with him for about 6 years. This in entirety is the evidence led by the parties.

17. Section 498-A reads thus:-

“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 fr a term which may extend to three years and shall also be liable to fine. Explanation-For the purpose 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.”

18. The offence under Section 498-A has the following essential ingredients:- 

“(a) that the victim was a married lady (she may also be a widow), (b) that she been subjected to cruelty by her husband or the relative of her husband, (c) that such cruelty consisted of either (1) harassment of the woman with a view to coerce meeting a demand for dowry, or (2) a willful conduct by the husband or the relative of her husband of such a nature as is likely to lead the lady to commit suicide or to cause grave injury to her life, limb or health; (d) that such injury aforesaid may be physical or mental.”

19. Adverting to the facts of the case, it is duly proved on record that the petitioner is living with one Kavita Devi who has even born a child from his lions. Such fact is supported by none other than the father of Kavita Devi, who appeared as PW7. However, the mere fact that the petitioner during the subsistence of marriage had contracted second marriage and started living with another woman by itself may not amount to cruelty for the purpose of offence punishable under Section 498-A IPC. Even though this act would constitute cruelty for the purpose of judicial separation or dissolution of marriage. (Ref:- U. Suvetha vs. State (2009) 6 SCC 757, Manju Ram Kalita vs. State of Assam (2009) 13 SCC 330). However, where it is proved that the husband in order to have second marriage or have an extra-marital relations, gives beatings to his wife and is bent upon to turn her out of the matrimonial house, the case will squarely fall within the ambit of Section 498-A and it is absolutely not necessary to establish that such beatings were intended to secure the fulfilment of any demand for property or valuable security.

20. A similar question came up for consideration before a learned Single Judge of this Court in State of H.P. vs. Pawan Kumar, 2000 Crl.J. 4889, wherein the facts were that the husband was having an extra-marital relations and would beat his wife and was bent upon to turn her out of matrimonial house, the Court held that such fact would amount to wilful conduct on the part of husband and case would squarely fall under Section 498-A. In such cases, it was not necessary to establish that such beatings were intended to secure fulfilment of demand for property/valuable security. It is apt to reproduce, the relevant observations, which reads thus:-

“12. To constitute cruelty within the meaning of section 498-A, IPC, the following has to be established; 

(i) any wilful conduct on the part of the accused which is of a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to her life, limb or health whether mental or physical; or 

(ii) harassment of the woman by the accused with a view to coercing her or her relations to meet any unlawful demand for any property or valuable security or on account of failure of the woman or her relation as the case may be to meet such demand.

13. The expression “wilful conduct” as used hereinabove, cannot be read in a narrow compass but has to be given a wider meaning so as to include any wilful conduct on the part of the accused which may drive the concerned woman to commit suicide or is likely to cause grave injury to her life, limb or health. As is the human nature, the greatest emotional torture to a spouse will be the infidelity of the other spouse. Therefore, the conduct of a husband having extra-marital relations definitely will amount to such wilful conduct on the part of the husband which can, in the given circumstances, drive the wife to commit suicide or to act in a manner which may cause grave injury or danger to her life, limb or health, mental as well as physical. Similarly, it cannot be said that beating of his wife by a husband is not wilful conduct on the part of the husband which may drive the wife to commit any of the acts specified hereinabove. Beatings and threat to a wife to turn her out of the matrimonial house for the reason that husband has extra- marital relations will still be a grave wilful conduct on the part of the husband which may drive a woman to commit suicide or to cause grave injury or danger to her life, limb or health, mental as well as physical. Thus, in a case where it is proved that the husband is having extra-marital relations and as a consequence thereof he beats his wife and is bent upon to turn her out of the matrimonial house, the case will squarely fall within the ambit of Section 498-A IPC and it is absolutely not necessary to be established that such beatings were intended to secure the fulfilment of any demand for any property or valuable security.

14. The learned trial Magistrate, therefore, is wrong on a point of law while holding that extra-marital relations of a husband is not a wilful conduct on his part which may amount to an offence under Section 498-A IPC and is an offence under Section 497 IPC. It has to be differentiated that a wife, when met with cruelty by the husband by having extra-marital relations, her remedy is either by seeking divorce and/or to complain under Section 497 IPC, because in view of the provisions of Section 198 Cr.P.C. no Court shall take cognizance of an offence punishable under Section 497 IPC except on the complain of an aggrieved person and such aggrieved person shall be the husband of the woman with whom adultery is committed or in the absence of the husband, such other person who had care of such woman on behalf of the husband at the time when such offence was committed. Thus, a wife cannot lodge a complaint against her husband for the commission of an offence of adultery under Section 497 IPC but can make a complaint only under Section 498-A IPC. Therefore, grounds (I) and (ii) above, relied upon by the learned trial Magistrate for acquitting the accused persons, are not sustainable.”

21. Even otherwise the evidence emerging on the record clearly establishes beyond reasonable doubt that the petitioner had been treating the complainant in the most inhuman manner and had crossed all limits of humanity when he gave beatings to her at the time when she was carrying child of the petitioner and was in the advanced stage (eighth month) of pregnancy and on account of such beatings had to be hospitalised.

22. In view of the aforesaid discussion, I do not find any perversity or illegality having committed by learned Courts below, therefore, I see no reason to interfere. There is no merit in this petition, the same is accordingly dismissed.