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S. 304-B IPC and S. 113-B of Evidence Act are decisive provisions to ascertain unnatural death as dowry death: Allahabad HC explains

Allahabad High Court: Dinesh Pathak, J., addressed a matter of dowry death and upheld the lower court’s decision.

Factual Matrix

An FIR was filed by the informant (PW-1) with regard to the dowry death of his daughter who was allegedly killed by her in-laws.

Accused was married to the informant’s daughter and at the time of marriage, he had received Rs 1 lakh cash as well as goods worth Rs 1 lakh. That apart, he had given one golden chain and golden ring to the groom, but in-laws of his daughter were not satisfied with the dowry.

Due to non-fulfilment of dowry demand, in-laws of the informant’s daughter attempted several times to kill her and later kicked her out of their house. She was subjected to cruelty and later in June, 2015 the police informed her about the death of the daughter.

Analysis, Law and Decision

High Court noted that the present matter pertained to the dowry death of the lady who had been allegedly hanged by her in-laws.

Bench stated that the case is of circumstantial evidence. Trial Court concluded that demand for dowry was the root cause and drew the victim to take a drastic step of ending her life.

Section 304-B IPC and Section 113-B of Evidence Act are decisive provisions to ascertain the unnatural death as dowry death.

Conjoint reading of Section 304-B IPC and presumptive provision of Section 113-B of the Evidence Act, one of the essential ingredients, amongst others, is that the woman must have been soon before her death subjected to cruelty and harassment for or in connection with demand of dowry. On the proof of essentials as mentioned in the aforesaid sections, it becomes obligatory on the Court to raise a presumption that the accused caused the dowry death.

“…it becomes obligatory on the Court to raise a presumption that the accused caused the dowry death.”

Supreme Court expounded the legal presumption qua dowry death in Sher Singh v. State of Haryana, (2015) 3 SCC 724.

It was expressed in the present matter that in case of dowry death initial burden lies upon the prosecution to prove the ingredients of Section 304-B IPC by a preponderance of probability.

In the matter in hand, prosecution witnesses of fact i.e. PWs-1, 2 and 3 were consistent in their depositions qua cruel attitude of husband and his family member in connection with demand of dowry.

Main ingredients of dowry death are harassment and cruelty for the demand of dowry.

Main Question:

Whether the victim had died otherwise than under normal circumstances and it was shown that soon before her death, she was subjected to cruelty and harassment by her husband or his relatives for, or in connection with, any demand of dowry.

Matter in hand relates to dowry death of victim, which is obviously a case of death other than under normal circumstances.

Bench noted that it may be a matter of dispute as to whether she had been forcibly hanged to death or hanged herself to death but there was no doubt that she had ended her life under extreme pressure created by her on laws.

After careful consideration of evidences of prosecution witnesses and defence witnesses, Trial Court has taken a pragmatic view that involvement of parents of husband (i.e. appellant herein) is not made out on the facts and circumstances of the present case, who were living separately from their son but the involvement of husband cannot be ruled out.

Adding to the above analysis, it was stated that from the evidence on record it is proved that appellant was living with his wife, therefore, his claim for acquittal on the ground of acquittal of his relatives (i.e. parents) was not sustainable and being cohabitant with his wife, his complicity in the commission of a crime could easily be inferred.

High Court concluded that there was persistent demand of dowry made by the accused from the victim who was subjected to cruelty and harassment and ultimately she had ended her life in suspicious circumstances wherein injury inflicted on her forehead suggested some violence soon before her death.

Prosecution successfully discharged its duty and it is obligatory on the Court to raise a presumption that the accused caused the dowry death.

Hence, the present appeal was dismissed and the decision of the lower court was upheld. [Deepak v. State of U.P., 2021 SCC OnLine All 190, decided on 3-03-2021]

Advocates before the Court:

Counsel for Appellant:- Ashok Kumar Yadav, Rakesh Dube

Counsel for Respondent :- A.G.A.

Case Briefs Supreme Court

Explained| Cruelty and Dowry Death: Can conviction under Section 304-B IPC sustain without any charges under Section 498A IPC?

Supreme Court: In a case relating to dowry death, where it was argued by the accused that without any charges under Section 498A, IPC a conviction under Section 304-B, IPC cannot be sustained, the 3-judge bench of NV Ramana, CJI and Surya Kant and Aniruddha Bose, JJ has rejected the contention and has explained,

“Although cruelty is a common thread existing in both the offences, however the ingredients of each offence are distinct and must be proved separately by the prosecution. If a case is made out, there can be a conviction under both the sections.”

Provisions in question

Section 304-B. Dowry death.—(1) Where the death of a woman is caused by any burns or bodily injury or occurs otherwise than under normal circumstances within seven years of her marriage and it is shown that soon before her death she was subjected to cruelty or harassment by her husband or any relative of her husband for, or in connection with, any demand for dowry, such death shall be called “dowry death”, and such husband or relative shall be deemed to have caused her death.

Explanation.—For the purpose of this sub-section, “dowry” shall have the same meaning as in Section 2 of the Dowry Prohibition Act, 1961 (28 of 1961).

(2) Whoever commits dowry death shall be punished with imprisonment for a term which shall not be less than seven years but which may extend to imprisonment for life.

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.

Background

The deceased got married to the accused in November, 2004 and gave birth to child in 2006. The death of the deceased occurred in 2008 after she consumed poison in her matrimonial home.

Both, the trial court and the Punjab and Haryana High Court, convicted the husband under Section 304-B for dowry death.

The counsel appearing on behalf of the accused-appellant argued that “the Courts below have, as a matter of routine, applied the presumption u/s 113B of Evidence Act in the instant case wherein even the basic and essential ingredient of Section 304-B, IPC are not satisfied.”

It was submitted that just because the death of the deceased occurred within seven years of marriage, by no stretch of imagination can it be said that the deceased soon before her death was subjected to cruelty in connection with the demand of dowry.

“The fact that the deceased was happy with the appellant is clearly evident as she lived with him and bore his child, and never mentioned any harassment or cruelty being meted out by the appellant. Furthermore, the gifts received by the appellant-husband were voluntarily given by the complainant and his family.”

It was also argued that without any charges under Section 498A, IPC a conviction under Section 304-B, IPC cannot be sustained.

Analysis

Section 304-B(1), IPC defines ‘dowry death’ of a woman. It provides that ‘dowry death’ is where death of a woman is caused by burning or bodily injuries or occurs otherwise than under normal circumstances, within seven years of marriage, and it is shown that soon before her death, she was subjected to cruelty or harassment by her husband or any relative of her husband, in connection with demand for dowry.

Considering the aforementioned said law, the Court noted that since,

the marriage between the deceased and the accused-appellant took place on 23.11.2004, and
the death of the deceased occurred in 2008 after she consumed poison in her matrimonial home,

therefore, the first two ingredients as to death under otherwise than ‘normal circumstances’ within seven years of marriage stand satisfied.

Coming to the next ingredient necessary for establishing the existence of dowry demand i.e. “soon before her death”, the Court noticed that,

the deceased had expressed her unhappiness due to the constant harassment and dowry demands, to her father.
The father also stated as to how the families attempted to mediate the dispute themselves and on multiple occasions the father of deceased gave certain gifts to the accused and his family to ameliorate the situation.
Further, the mother of the deceased had informed the father 15-20 days prior to the incident about the continuing harassment of the deceased on account of dowry.
Finally, on 08.08.2008, the father-in-law of the deceased informed this witness about the consumption of poison by the deceased.

It is also important to note that both the Trial Court and the High Court found the above evidence of the father of the deceased to be reliable and consistent despite a thorough cross-examination. No evidence was produced by the appellant to disregard the aforesaid testimony.

On the defence of the accused is that his family and family of the deceased shared a cordial relationship, and in fact, the appellant had helped the mother of deceased in getting treatment of cancer, the Trial Court, after a thorough examination of the evidences- both oral and documentary, concluded that the accused-appellant, who was working as a technician in a hospital, has forged the hospital records to prove the existence of cordial relationship between the families of the deceased and the accused.

It was hence concluded that necessary ingredients under Section 304-B, IPC stood satisfied.

Explaining the difference between offences under Section 498-A and Section 304-B, IPC, the Court note of the judgment in Kamesh Panjiyar v. State of Bihar, (2005) 2 SCC 388, wherein it was held,

“… Sections 304- B and 498-A IPC cannot be held to be mutually inclusive. These provisions deal with two distinct offences. It is true that cruelty is a common essential to both the sections and that has to be proved. The Explanation to Section 498-A gives the meaning of “cruelty”. In Section 304-B there is no such explanation about the meaning of “cruelty”. But having regard to the common background to these offences it has to be taken that the meaning of “cruelty” or “harassment” is the same as prescribed in the Explanation to Section 498-A under which “cruelty” by itself amounts to an offence. Under Section 304-B it is “dowry death” that is punishable and such death should have occurred within seven years of marriage. No such period is mentioned in Section 498-A. If the case is established, there can be a conviction under both the sections.”

[Gurmeet Singh v. State of Punjab, 2021 SCC OnLine SC 403, decided on 28.05.2021]

Judgement by: CJI NV Ramana

Know Thy Judge| Justice N.V. Ramana

Case Briefs High Courts

Ker HC | Malevolent intention is not essential to cruelty; HC grants divorce on the ground of cruelty for making false allegation of impotency

Kerala High Court: The Division Bench of A. Muhamed Mustaque and Kauser Edappagath, JJ., held that false allegation of impotency amounts to mental cruelty, hence, is a valid ground for dissolution of marriage.

The appellant and the respondent were husband and wife, both doctors by profession. Both of them had initiated legal proceedings against each other – the husband, for divorce and the wife, for restitution of conjugal rights. After trial, the Court below, by the impugned common order, dismissed the original petition filed by the appellant and allowed the original petition by the respondent granting her a decree for restitution of conjugal rights.

The appellant had sought for decree of nullity on the ground that his consent to the marriage was obtained by fraud perpetrated by the respondent in suppressing material facts regarding her mental condition. He had also prayed that the marriage be dissolved on the grounds of incurable unsound mind and cruelty on the part of the respondent.

Whether suppression of any information amount to fraud?

Though it was alleged by the appellant, and practically admitted by the respondent, that two psychiatrists had treated the respondent, no steps were taken by the appellant to examine them or to produce the treatment records. The essential ingredient to be proved for securing an order of dissolution of marriage under Section 10 (1) (iii) of the Act, 1869 is that the respondent had been incurably of unsound mind for a continuous period of not less than two years immediately preceding the presentation of the petition; but there was no convincing evidence on record to prove that the respondent had been suffering from any mental disease of incurable nature. Therefore, opining that the proviso to Section 19 of the Act gets attracted only when the consent was obtained through force or by playing fraud, the Bench explained,

“The word ‘suppression’ does not occur in Section 19 of the Act. The Parliament has employed the words ‘force’ and ‘fraud’. Before a party gives consent for the marriage with the other, there is bound to be exchange of information. This Section cannot be treated as a provision placing burden upon a spouse to the marriage, to reveal the entire information about him or her to the other.”

Hence, the Bench reached to the findings that the allegation was about suppression and failure to inform a particular fact cannot be treated as fraud, unless the person failing to mention it was under legal obligation to state it. Thus, the non disclosure by the wife before marriage that she was suffering from delusion disorder was not a suppression of material fact. Hence, it could not amount to fraud in obtaining his consent for the marriage.

Cruelty

Considering the case of the appellant, the Bench opined that there was nothing to disbelieve the evidence given by the appellant that throughout the period they lived together, the respondent hs perpetrated various acts, ranging from several mental agony by behaving in an immature, irrational and bizarre manner, being drowsy, lethargic and unhygienic always, showing abnormal postures with her hands, talking uninhibitedly, often screaming that some gang was going to attack her, staring at people, having a phobia for darkness, having bad mouth odour, abdicating all shared household duties etc., making his life a living hell. The Bench stated that to constitute cruelty, the conduct complained of need not necessarily be so grave and severe so as to make cohabitation virtually unendurable or of such character as to cause danger to life, limb or health. It must be something more serious than “ordinary wear and tear of the married life”. It is sufficient if the conduct and behaviour of one spouse towards the other is of such a nature that it causes reasonable apprehension in the mind of the latter that it is not safe for him or her to continue the marital tie. The Bench further stated,

“Malevolent intention is not essential to cruelty. There may be instances of cruelty by unintentional but inexcusable conduct of the party. The absence of intention should not make any difference in the case, if by ordinary sense in human affairs; the act complained of could otherwise be regarded as cruelty.”

It had been held by the Supreme Court in Samar Ghosh (supra) that intention is not a necessary element in cruelty and that the relief to the party cannot be denied on the ground that there has been no deliberate or wilful ill treatment.

False Allegation of Impotency

Yet another facet of mental cruelty on the part of the respondent canvassed by the appellant was the false accusation made by the respondent against the appellant about his sexual capacity, that the appellant was suffering from erectile dysfunction and was incapable of performing sexual activities. In K. Srinivas Rao v. D. A. Deepa, (2013) 5 SCC 226, it was held that making unfounded indecent defamatory allegations against the spouse or his or her relatives in the pleadings amount to causing mental cruelty to the other spouse.

The respondent had imputed that the appellant was suffering from erectile dysfunction, and thus, he was incapable of performing sexual activities, but at the same breath, she had admitted that she had a satisfactory sexual relationship with the appellant after July, 2010. Therefore, opining that the respondent had miserably failed to substantiate the imputation made by her, the Bench said remarked,

“Casting aspersions of impotency or erectile dysfunction by one spouse against other in the counter statement in a matrimonial proceeding will undoubtedly constitute cruelty.”

Hence, it was found that the respondent making unnecessary accusations against the appellant amounted to mental Cruelty. Accordingly, the Bench held that the appellant had made out a case for granting a decree for dissolution of marriage on the ground of cruelty under Section 10(1)(x) of the Act. The prayer for restitution of conjugal rights by the respondent was rejected, the impugned orders were partly set aside and the marriage between the appellant and the respondent was dissolved.[xx v. xx, 2021 SCC OnLine Ker 2327 , decided on 31-05-2021]

Kamini Sharma, Editorial Assistant has reported this brief.

Appearance before the Court by:

For the Appellant: Adv. P.Gopakumaran Nair, Adv. B.Bindu and Adv. N.K.Subramanian

For the Respondent: Adv. K.N.Abhilash and Adv. Sunil Nair Palakkat

Case Briefs High Courts

Madras HC | 12 long years of proceedings, but no appearance of wife. Assault on husband’s vital body part, not denied. Can her appeal against dissolution of marriage be still accepted? Read on

Madras High Court: The Division Bench of T. Raja and G. Chandrasekharan, JJ., while upholding the decision of Court below stated that for 12 long years the wife did not appear for any proceedings to disprove the allegations of husband and crucial allegations such as assaulting husband on his vital part of the body are included which were never denied by the wife, then how can the parties be made to live together.

Present appeal was directed against the decision of the Family Court dissolving the marriage between the parties.

Counsel for the appellant/wife argued that the trial court without taking into account the contents of various exhibits and contents of cross-examination of the respondent/husband gave a finding of guilt of cruelty meted out to respondent/husband that could not be sustained as the same was a result of erroneous appreciation of entire materials available before the Court below.

It was also submitted that the husband had fabricated certain documents to evade the payment of maintenance. Due to which the wife had to file a number of proceedings for which the appellant could not be demoralized giving a stamp of inflicting cruelty upon her husband.

Issues that arose in the present matter were as follows:

Whether the failure on the part of the appellant/wife to participate in the divorce proceedings before the Court below would amount to accepting the allegations made by the respondent/husband as true?
When the respondent/husband has filed the petition for divorce under Section 13(1)(ia) of the Hindu Marriage Act, on the refusal of the appellant/wife either to appear in the witness box to state her own case on oath or not offering herself to be cross examined by the other side, whether the Court below is legally justified in drawing an adverse presumption that the case set up by the appellant/wife is not correct, under Section 114-Illus.(g) of the Evidence Act?

High Court’s Analysis and Finding

Bench stated that since the wife had raised counter-allegations, it was her duty and obligation to appear before the Court below and substantiate the same by disproving the allegations made by the respondent/husband by seriously participating in the enquiry.

It was rightly submitted by the counsel for the husband that when the divorce petition was pending from 2007 till 2019, for almost a period of 12 long years appellant/wife had chosen to filed 13 interlocutory applications but it is not known why she did not choose to appear before the Court below to take part in the enquiry.

Secondly, when the wife filed a case against the respondent under Sections 498(A), 406, 323, 504 & 506 of IPC, for which a trial of 9 long years was held, after which the husband and his parents were acquitted, it is unknown why the appellant devoted time to project a false case but did not appear for the enquiry before the Court below to disprove the allegations made by the husband.

Thirdly, she had also filed a case of domestic violence and for maintenance.

High Court stated that when she had boycotted the proceedings before the Court below, where she had the advantage of examining and cross-examining the respondent, she could not have come to this Court.

Bench referred to Order VIII Rule 5(1) of the Code of Civil Procedure, as per which every allegation of fact in the plaint, if not denied specifically or by necessary implication, the same shall be taken to be admitted as against the person who failed to deny the same.

Conjoint reading of Order XVI, Rule 20, Order XV, Rule 4, Order XVI, Rule 20 and Order XXII, Rule 4 of CPC shows that where any party to a suit pending in Court refuses to give evidence or to produce any document then and there in his/her possession or avoid the Court willfully, the Court can pronounce judgment or make such order against that party on the ground that he or she failed to prove the case.

High Court referred to the Supreme Court decision in Mohinder Kaur v. Sant Paul Singh, (2019) 9 SCC 358, wherein it was held that a party to the suit who does not appear in the witness box to state his own case on oath and does not offer himself to be cross examined by the other side, would suffer a presumption, because the case set up by hi would not be genuine, natural or honest and real one.

12 Long Years and No Appearance

Further, in the present matter, Court’s opinion was that when the appellant/wife deliberately and willfully boycotted the proceedings before the Court below for 12 long years due to not having any evidence, she cannot approach this Court with this appeal since the same will not be maintainable.

A very crucial allegation made by the husband was that the wife had assaulted him on his vital part of the body and the same was not even denied by the wife in the counter affidavit.

In view of the above-said allegation and no denying of the same by the wife, it is clear that the wife not only caused mental cruelty but also physical cruelty upon the husband.

“…when the parties are all fighting for more than 14 long years, they cannot be made to live together.”

Unclean Hands

Family Court of Mumbai found that the appellant came to the Court with unclean hands since in the proceeding regarding maintenance she did not show that she was working and having a source of income.

The above order became final, this Court found no justification in this appeal.

High Court found no infirmity or error in the decision of the Family Court and hence upheld the same. [Narayanee v. S. Karthik, 2021 SCC OnLine Mad 2080, decided on 24-03-2021]

Advocates before the Court:

For Appellant: Dr K Santhakumari

For Respondent: J. Saravanavel

Case Briefs Supreme Court

Judges need to be extra careful while conducting criminal trials relating to dowry deaths: Supreme Court [Read guidelines]

Supreme Court: In a case relating to dowry death, the bench of NV Ramana*, CJ and Aniruddha Bose, J has said that judges need to be extra careful while conducting criminal trials relating to Section 304-B, IPC. The Court went on to summarise the law under Section 304B, IPC read with Section 113B, Evidence Act and the guidelines to be followed by the Courts while conducting trials in such cases.

The Court noticed that, often, Trial Courts record the statement of an accused under Section 313, CrPC in a very casual and cursory manner, without specifically questioning the accused as to his defense.

“It ought to be noted that the examination of an accused under Section 313, CrPC cannot be treated as a mere procedural formality, as it is based on the fundamental principle of fairness.”

Hence, the Court must put incriminating circumstances before the accused and seek his response. A duty is also cast on the counsel of the accused to prepare his defense, since the inception of the trial, with due caution, keeping in consideration the peculiarities of Section 304¬B, IPC read with Section 113-B, Evidence Act.

Dowry deaths – Facts and Figures

A study titled “Global study on Homicide: Gender-related killing of women and girls”, published by the United Nations Office on Drugs and Crime, highlighted that in 2018 female dowry deaths account for 40 to 50 percent of all female homicides recorded annually in India. The dismal truth is that from the period 1999 to 2016, these figures have remained constant.

The latest data furnished by the National Crime Records Bureau indicates that in 2019 itself, 7115 cases were registered under Section 304-B, IPC alone.

Law on dowry death – The trajectory

Section 304¬B, IPC is one among many legislative initiatives undertaken by Parliament to remedy a long-standing social evil of dowry death. The pestiferous nature of dowry harassment, wherein married women are being subjected to cruelty because of covetous demands by husband and his relatives has not gone unnoticed. The Parliament enacted the Dowry Prohibition Act, 1961 as a first step to eradicate this social evil. Further, as the measures were found to be insufficient, the Criminal Law (Second Amendment) Act, 1983 (Act 46 of 1983) was passed wherein Chapter XX-A was introduced in the IPC, containing Section 498¬A.

The need for a stringent law to curb dowry deaths was suo motu taken up by the Law Commission in its 91st Law Commission Report. The Law Commission recognized that the IPC, as it existed at that relevant time, was insufficient to tackle the issue of dowry deaths due to the nature and modus of the crime.

The Parliament, then, introduced amendments to the Dowry Prohibition Act, as well as the IPC by enacting Dowry Prohibition (Amendment) Act, 1986 (Act 43 of 1986). By way of this amendment, Section 304-B, IPC was specifically introduced in the IPC, as a stringent provision to curb the menace of dowry death in India.

Margaret Alva, who presented the Amendment Bill before Rajya Sabha observed:

“You have never really heard of a girl being burnt while cooking in her mother’s house or her husband’s house. It is always in the mother-in-law’s house that she catches fire and is burnt in the kitchen. Therefore, getting evidence immediately becomes a great bit problem. Therefore, we have brought in a couple of amendments which give certain presumptions where the burden of proof shifts to the husband and to his people to show that it was not a dowry death or that it was not deliberately done.”

Dowry Death and Criminal Trial – Law Summarised

Section 304¬B, IPC must be interpreted keeping in mind the legislative intent to curb the social evil of bride burning and dowry demand.
The prosecution must at first establish the existence of the necessary ingredients for constituting an offence under Section 304-B, IPC. Once these ingredients are satisfied, the rebuttable presumption of causality, provided under Section 113¬B, Evidence Act operates against the accused.
The phrase “soon before” as appearing in Section 304¬B, IPC cannot be construed to mean ‘immediately before’. The prosecution must establish existence of “proximate and live link” between the dowry death and cruelty or harassment for dowry demand by the husband or his relatives.
Section 304-B, IPC does not take a pigeonhole approach in categorizing death as homicidal or suicidal or accidental. The reason for such non categorization is due to the fact that death occurring “otherwise than under normal circumstances” can, in cases, be homicidal or suicidal or accidental.
Due to the precarious nature of Section 304-B, IPC read with 113¬B, Evidence Act, Judges, prosecution and defence should be careful during conduction of trial.
It is a matter of grave concern that, often, Trial Courts record the statement under Section 313, CrPC in a very casual and cursory manner, without specifically questioning the accused as to his defense. It ought to be noted that the examination of an accused under Section 313, CrPC cannot be treated as a mere procedural formality, as it based on the fundamental principle of fairness. This aforesaid provision incorporates the valuable principle of natural justice “audi alteram partem” as it enables the accused to offer an explanation for the incriminatory material appearing against him. Therefore, it imposes an obligation on the court to question the accused fairly, with care and caution.
The Court must put incriminating circumstances before the accused and seek his response. A duty is also cast on the counsel of the accused to prepare his defense since the inception of the Trial with due caution, keeping in consideration the peculiarities of Section 304-B, IPC read with Section 113¬B, Evidence Act.
Section 232, CrPC provides that, “If, after taking the evidence for the prosecution, examining the accused and hearing the prosecution and the defence on the point, the Judge considers that there is no evidence that the accused committed the offence, the Judge shall record an order of acquittal”. Such discretion must be utilized by the Trial Courts as an obligation of best efforts.
Once the Trial Court decides that the accused is not eligible to be acquitted as per the provisions of Section 232, CrPC, it must move on and fix hearings specifically for ‘defence evidence’, calling upon the accused to present his defense as per the procedure provided under Section 233, CrPC, which is also an invaluable right provided to the accused.
In the same breath, Trial Courts need to balance other important considerations such as the right to a speedy trial.
The presiding Judge should follow the guidelines laid down by the Supreme Court while sentencing and imposing appropriate punishment.
Undoubtedly, the menace of dowry death is increasing day by day, however, sometimes family members of the husband are roped in, even though they have no active role in commission of the offence and are residing at distant places. In these cases, the Court need to be cautious in its approach.

[Satbir Singh v. State of Haryana, 2021 SCC OnLine SC 404, decided on 28.05.2021]

Judgment by: Chief Justice of India NV Ramana

Know Thy Judge| Justice N.V. Ramana

Case Briefs Supreme Court

After one year of marriage, woman burnt to death over dowry. Supreme Court finds accused guilty; explains the true import of “soon before” under Section 304-B IPC

Supreme Court: In a case where a woman died of burn injuries one year into her marriage, the bench of NV Ramana*, CJ and Aniruddha Bose, J has held that Courts should use their discretion to determine if the period between the cruelty or harassment and the death of the victim would come within the term “soon before” as the factum of cruelty or harassment differs from case to case.

“When the legislature used the words, “soon before” they did not mean “immediately before”. Rather, they left its determination in the hands of the courts.”

Background

A woman got married to a man in July, 1994. As fate would have it, she died exactly after year after receiving burn injuries, allegedly after she set herself ablaze due to being subjected to cruelty and dowry demand at the hands of her husband and in-laws. The appellants were convicted by the Trial Court in December, 1997 for the offences under Sections 304¬B and 306, IPC and were sentenced to undergo rigorous imprisonment for seven years for the offence punishable under Section 304-B, IPC and to undergo rigorous imprisonment for five years for the offence punishable under Section 306, IPC.

In November, 2008, the Punjab and Haryana High Court also upheld the order of the Trial Court and dismissed the appeal filed by the appellants.

Analysis

Was the offence under Section 304-B IPC made out?

“Soon before” – Interpretation

When the legislature used the words, “soon before” they did not mean “immediately before”. Rather, they left its determination in the hands of the courts. The factum of cruelty or harassment differs from case to case. Even the spectrum of cruelty is quite varied, as it can range from physical, verbal or even emotional. This list is certainly not exhaustive. Therefore, Courts should use their discretion to determine if the period between the cruelty or harassment and the death of the victim would come within the term “soon before”.

“What is pivotal to the above determination, is the establishment of a “proximate and live link” between the cruelty and the consequential death of the victim.”

When the prosecution shows that ‘soon before her death such woman has been subjected by such person to cruelty or harassment for, or in connection with, any demand for dowry’, a presumption of causation arises against the accused under Section 113-B of the Evidence Act. Thereafter, the accused has to rebut this statutory presumption.

Further, Section 304-B, IPC does not take a pigeonhole approach in categorizing death as homicidal or suicidal or accidental, as was done earlier. The reason for such non categorization is due to the fact that death occurring “otherwise than under normal circumstances” can, in cases, be homicidal or suicidal or accidental. However, the Section 304-B, IPC endeavors to also address those situations wherein murders or suicide are masqueraded as accidents.

“Therefore, if all the other ingredients of Section 304¬B IPC are fulfilled, any death whether caused by burns or by bodily injury or occurring otherwise than under normal circumstances shall, as per the legislative mandate, be called a “dowry death” and the woman’s husband or his relative “shall be deemed to have caused her death” unless proved otherwise.”

Chain of circumstances – Where did it lead?

The deceased and accused were married on 01.07.1994, and the death of the lady occurred on 31.07.1995.
According to the evidence of the doctor, the entire body of the deceased was doused with kerosene oil. Therefore, the possibility of an accident was ruled out.
The Deceased had disclosed to her brother, within a month after her marriage that the accused, husband and mother-in-law, used to physically harass her on the account of bringing insufficient dowry. Furthermore, the accused persons had made a specific demand of a scooter. Pursuant to this disclosure, she was brought back to her paternal house.
Only a month prior to her death, the deceased had returned to her matrimonial house. However, the accused still used to harass the deceased for dowry. The aforesaid fact was revealed by the deceased to her father, when she had come to visit him.
Just a week before the death, on the occasion of Teej festival, another brother of the deceased had visited her while she was in her matrimonial home. The deceased had reiterated her plight to her
On 31.07.1995, the father of the deceased was informed by some villagers that his daughter has been admitted in the hospital. Upon reaching, the father discovered that the deceased succumbed to burn injuries.

“The aforesaid chain of circumstances proves that there existed a live and proximate link between the instances of demand of dowry and the death of the deceased.”

The court noticed that since the ingredients of Section 304¬B, IPC stoodsatisfied, the presumption under 113¬B, Evidence Act operated against the appellants, who are deemed to have caused the offence specified under Section 304-B of IPC. The burden therefore shifted on the accused to rebut the aforesaid presumption, who in turn, failed to make out a case for acquittal.

Was the offence under Section 306 IPC made out?

A bare reading of the provision indicates that for the offence under Section 306, IPC the prosecution needs to first establish that a suicide has been committed. Secondly, the prosecution must also prove that the person who is said to have abetted the commission of suicide, has played an active role in the same.

With respect to this latter requirement, Section 113¬A, Evidence Act creates a presumption against the husband and/or his relative with respect to the abetment of suicide of a married woman, under certain conditions. Not going into the other conditions, a perusal of the provision indicates that such presumption shall be attracted only if the factum of suicide has been established by the prosecution first.

However, in the present case, the conclusion reached by the Courts below was based on assumptions, as there is no evidence on record to support the same.

The reasoning of the Trial Court in this regard was:

“Further, there is no direct evidence having been adduced by the prosecution the (sic) any of the accused caused death by sprinkling kerosene on the body of the deceased, the only possibility is that Meena Kumari put an end to her life by sprinkling kerosene on her body.”

Hence, since there was insufficient evidence to prove the factum of suicide beyond reasonable doubt, the presumption under Section 113-A, Evidence Act, is not of much help for the prosecution. The essential ingredient of deceased committing suicide has not been proved by the prosecution by adducing sufficient evidence.

“In the present case, the prosecution has failed to establish that the death occurred due to suicide. Therefore, we are of the opinion that the finding of the Courts below convicting the appellants under Section 306, IPC merits interference by this Court.”

Conclusion

Conviction under Section 304-B IPC was upheld and conviction and sentence under Section 306, IPC was set aside.

[Satbir Singh v. State of Haryana, 2021 SCC OnLine SC 404, decided on 28.05.2021]

Judgment by: Chief Justice of India NV Ramana

Know Thy Judge| Justice N.V. Ramana

Case Briefs High Courts

Madras HC | 25 long years of separation, but no decree of divorce granted – Why? Read whether HC dissolves the marriage or not

Madras High Court: T. Raja, J., in the present matter while considering the long separation of parties for almost a quarter-century, granted a decree of divorce by dissolving the marriage between the parties.

Factual Matrix

In the present matter, appellant was married to the respondent and a male child was born out of wedlock. During the pregnancy of respondent, it was alleged that even after doctor’s advise, the respondent/wife had not taken proper care. Ultimately, the respondent delivered a handicapped male child.

Further, it was also alleged that from the date of marriage, the respondent was adamantly raising disputes and quarrels even for cohabitation due to which the appellant was subjected to mental agony.

Although the appellant tolerated all the unlawful activities of the respondent on the belief that she would change her attitude in due course, no improvement thereon had occurred.

No Response for 7 long years

Respondent later left the matrimonial house and never came back even after a lot of requests and visits by the appellant and his parents. When there was no response from the respondent for 7 long years and thereby deserted the appellant, petition was filed before the Family Court seeking divorce on the ground of cruelty and desertion under Section 13(1)(i—a) and (i—b) of the Hindu Marriage Act to dissolve the marriage between the appellant and respondent.

Respondent had sought restitution of conjugal rights under Section 9 of the Hindu Marriage Act. Trial Court concluded that husband, wanted to get rid of the special child and mother and no cruelty was caused by the respondent/wife and no desertion was accused of the simple reason that only the appellant has taken both the respondent with the son by car to her parental house and left them there with the promise that he would come and take them back. But he did not turn up to take them back to the matrimonial home.

When the lower appellate court came to the conclusion that no case of cruelty or desertion was made out, aggrieved thereby, the present appeal was filed by the appellant raising the following substantial questions of law:

Whether the appellant/husband is entitled to divorce on the ground of cruelty and desertion and whether the respondent/wife is entitled to the relief of restitution of conjugal rights?
Whether the Courts below have properly applied the law of evidence as the question of proof of cruelty and desertion can always be decided only on oath?
Whether the finding of the lower appellate Court in putting the blame on the appellant in not taking care of the spastic child is not contrary to the evidence available on record?

Analysis, Law and Decision

Bench expressed that a human problem can be properly resolved by adopting a human approach and applying the same ratio in the cases on hand, when the parties are living separately for 25 long years, not to grant a decree of divorce would be disastrous for the parties.

Adding to the above, Court stated that preservation of a ruined marriage is totally unworkable, as this would be a source of misery for the parties. During the pendency of the matters, the parties declined to accept the proposal for re-union.

Therefore, when the parties were living separately for 25 long years and the mediation efforts were undertaken also proved to be of no avail, this Court following the decision of the Supreme Court in Naveen Kohli v. Neelu Kohli, 2006 (2) CTC 510, Bench decided to dissolve the marriage between the parties.

Moving forward, Court being aware and conscious of the fact that the interest of the respondent needs to be safeguarded, elaborated that Section 25 of the Hindu Marriage Act states that at the time of the passing of any decree or at any tie subsequent, on an application made to it, may order one party to pay the monthly sum as maintenance to other party.

Since the appellant had been paying a sum of Rs 10,000 per month to the wife as maintenance without any default and taking care of his son with the assistance of a helper by paying from his pension bearing in mind that the appellant is a retired Bank Officer, this Court directs the appellant to continue to pay the said sum of Rs.10,000/- per month as maintenance to the respondent without fail.

Lastly, the wife was granted visitation rights and the matter was disposed of in view of the above terms. [V. Ramasamy v. L. Priya, 2021 SCC OnLine Mad 1674, decided on 26-04-2021]

Advocates before the Court:

For Appellant: Mrs K.Sumathi

For Respondent: Mr E.Raj Thilak

Case Briefs High Courts

[Cruelty by Wife] Cal HC | Reckless allegations against husband corroborated by daughter. Affidavit of daughter how far can corroborate husband’s allegations? Court determines while confirming divorce decree against wife

Calcutta High Court: A Division Bench of Arindam Sinha and Suvra Ghosh, JJ. confirmed a decree of divorce passed in favour of the husband by the trial court on grounds of cruelty by the wife. The instant appeal, dismissed by the High Court, was preferred by the wife against the judgment of the trial court.

Backdrop and Factual Matrix

The husband filed for divorce against the wife on grounds of cruelty, alleging that she made false allegations against him of having illicit relations with other women as well as their own daughter. The trial court found that no cogent proof of illicit relationship was forthcoming from the wife which could prove the allegations made by her against the husband. Therefore, the trial court held it amounted to cruelty against the husband under Section 13(i)(i-a) of the Hindu Marriage Act, 1955; and granted a decree of divorce in favour of the husband.

Contentions ─ Wife

The wife argued that the allegation of cruelty was erroneously held to be proved against her. She submitted that the persons named were not produced as witness. Extreme financial hardship had prevented her from fully participating at the trial, but that by itself did not justify finding in the trial court’s judgment and decree that the allegation of cruelty was proved against her.

Contentions ─ Husband

The husband submitted that the suit was filed in year 2004. Dilatory tactics were adopted by the wife. He gave evidence and was cross-examined, which could not shake his evidence. Such unshaken testimony was corroborated by their daughter. The daughter was married and living happily in her matrimonial home. Grave and serious allegations against him were made regarding carrying on with several women, including, their daughter. This part of the evidence was also corroborated by the daughter. The daughter took to the witness box and corroborated unshaken testimony of the husband, and therefore the wife did not cross-examine her, nor turn up to give evidence and be cross-examined. In such circumstances, further corroboration was not required and the Court below correctly appreciated the evidence to find cruelty inflicted on him.

It was further submitted that he had allowed the wife to stay in his flat and is regularly paying her enhanced permanent alimony. Eighteen years of separation had happened and there should not now be reversal of the trial court’s judgment and decree. He relied on the Supreme Court decision in Adhyaatmam Bhaamini v. Jagdish Ambala Shah, (1997) 9 SCC 471.

Law, Analysis and Decision

The High Court analysed the facts and allegations in two parts. Firstly, the allegations were regarding the wife having taken up a 9 am to 9 pm job, after which she became very ill. The husband, in his evidence, stated that he put pressure on the wife to leave the job. On the other hand, the wife said that the husband forced her to work on a sales office to earn money to meet family expenses. On examining the record, it appeared to the High Court that the wife took up the job, after which she fell ill, and the husband caused her to leave the job. Therefore, the wife’s account on this point was disbelieved by the Court.

Secondly, the allegation against the wife was that in July-August 2003, she visited the husband’s office, informing the Committee of Housing about him maintaining illicit relationship with their daughter. As a consequence, members of the Committee came to their residence. The wife admitted that on one occasion, she went to her husband’s office, but only to meet him. She did not meet allegations regarding her approaching the Committee members.

The allegations of the husband against the wife, were corroborated by their daughter in her evidence-in-chief. Although some statements in her affidavit were hearsay. The Court opined that:

“There are some statements in her affidavit-in-chief, which are hearsay. The parts of her affidavit that can be attributed to be her evidence is in corroboration of what her father said in the petition, his affidavit-in-chief and from the Box, in cross-examination.”

On a complete analysis, the High Court held that the wife made reckless allegations against the husband, amounting to cruelty. The Court was convinced that there is no scope of interference in the trial court’s judgment and decree. The appeal was fount without any merit and was therefore dismissed. [Radha Majumder v. Arun Kumar Majumder, 2021 SCC OnLine Cal 1398, decided on 23-03-2021]

Advocates who appeared in this case:

Mr. Pradip Kumar Roy

Ms. Shraboni Sarkar … for appellant wife

Mr. Debabrata Acharyya

Mr. Sital Samanta … for respondent-husband

Case Briefs High Courts

Del HC | Is it within Court’s power to direct for further investigation on finding defects in the same? Death caused by suicide, Allegations of Dowry Death | Why FIR was registered after 10 months of deceased’s death? [Detailed Report]

Delhi High Court: Subramonium Prasad, J., expressed that:

“Courts must not close its eyes to the fact that it is the victim who knocks the doors of the Court and seeks justice must not left high and dry with the feeling that the accused have escaped due to the perfunctory/faulty/defective investigation.”

Instant petition as directed against the decision of Additional Sessions Judge that discharged the respondent 4 and 5 for the offences under Sections 306/34 of the Penal Code, 1860.

Petitioners are the parents of the deceased who was married to respondent 3. The deceased was found hanging by the neck from the ceiling fan in her matrimonial house within two and a half years of her marriage.

Statements before the SDM

Petitioner 1 i.e. the mother of the deceased stated that the deceased was not happy in her marriage and her mother-in-law and sister-in-law were responsible for the suicide. Though the deceased’s father said that he did not have any grievances or any complaints against any persons and that no one was responsible for the death of the deceased.

No FIR was registered against respondent 4 and 5.

After about 10 months of the death of the deceased, an FIR was registered under Sections 306/34 IPC.

Additional Sessions Judge found that the statements of parents before the SDM did not bear any stamp and that they were also not signed by the petitioners. Prima Facie no material was found to proceed against the accused persons for charges under Sections 306/34 IPC, hence the accused were discharged.

Though the Additional Sessions Judge found investigational lapses that required due probe and further directed for a copy of the order to be sent to the Screening Committee for appropriate action.

The above-said order has been challenged in the present petition.

Analysis, Law and Decision

“…charge-sheet in the instant case bleeds of wounds inflicted by the Police.”

No explanation on why FIR was registered after 10 months of the death

Bench noted that the investigation was oriented in order to give a closure report. And filing of FIR after ten months of the incident was contrary to law.

Petitioner 1 stated that the respondent 4 and 5 demanded dowry, hence there was no reason, whatsoever, not to lodge an FIR for an offence under Section 304B IPC.

It was also stated that IO told the petitioners to give statements as per his will and suggestions and threatened her. Petitioner 1’s letter to the Commissioner of police revealed that IO was forcing the parents of the deceased to enter into a compromise with the respondents.

To construe an offence under Section 304 B i.e. dowry death, the death of the women could have been caused by any burns or bodily injury or occurs otherwise than under normal circumstances within seven years of her marriage and it is shown that soon before her death she was subjected to cruelty or harassment by her husband or any relative of her husband in connection with, any demand for dowry.

Ingredients for constituting Section 304 B were made out but surprisingly no FIR was registered.

In the instant matter, the death occurred within 7 years of marriage and allegations of dowry death were also present against the respondent 4 and 5. Deceased died by committing suicide.

Bench expressed that unfortunately neither the Magistrate nor the ASJ orders a further investigation after commenting on glaring loopholes with the investigation.

Sufficient material on record was placed stating that the deceased was subjected to cruelty/harassment with the demand of dowry by respondent 4 and 5 and hence presumption under Section 113(b) of the Indian Evidence Act will apply.

Defective Investigation

It is well settled that where there has been negligence on the part of the investigating agencies or omissions either negligently or with a design to favour the accused, then it becomes the obligation of the Court to ensure that proper investigation is carried out.

Supreme Court’s decision in Vinubhai Haribhai Malaviya v. State of Gujarat, (2019) 17 SCC 1, Vinay Tyagi v. Irshad Ali, (2013) 5 SCC 762 were relied upon by the Court.

In the present matter, investigation was conducted in an extremely shoddy manner.

High Court elaborating more on the present matter stated that the ASJ while passing the impugned judgment on noticing the glaring inconsistencies should have ordered for further investigation.

Hence, impugned Judgment was set aside. High Court directed police to conduct an investigation on the basis of petitioners’ statements and the same to be conducted by a different investigation officer. [Saroj Bhola v. State of NCT of Delhi, 2021 SCC OnLine Del 1497, decided on 05-04-2021]

Advocates before the Court:

For the Petitioners: Chanan Parwani, Advocate

For the Respondents: Kusum Dhalla, APP for the State and respondent 2

Charanjeet Singh, Advocate for respondents 3 to 6

Case Briefs High Courts

Gau HC | “Nature of injury does not suggest that the appellant acted in cruelty”; HC converts conviction for murder into culpable homicide

Gauhati High Court: The Division Bench of Suman Shyam and Mir Alfaz Ali, JJ., heard the instant petition against the judgment and order dated 24-03-2011 rendered by Additional Sessions Judge, whereby, the appellant was convicted under Section 302 Penal Code, 1860 and sentenced to rigorous imprisonment for life.

The case of the prosecution was that on 07-11-2014, a fight took place between the deceased and the accused, both of whom were employees of one Shambu Shil. The appellant had inflicted injuries on the head of the deceased with an iron rod, which caused his death. An FIR was lodged by the employer of the deceased as well as the accused/appellant under Section 302 Penal Code, 1860. According to the doctor, the cause of death was shock and hemorrhage as a result of the injuries sustained. All the injuries were accessed to be ante mortem and homicidal in nature.

Moreover, the appellant had recorded a confession before the Judicial Magistrate, on the basis of which and testimony of the Trial Court had convicted the appellant under Section 302 IPC.

Counsel of the accused, B Bhagawati, Amicus Curiae argued that in the confessional statement, the appellant had stated that both were drunk at the time of the occurrence. Further, the confessional statement of the appellant, which was duly recorded by the Judicial Magistrate, and was corroborated by the eye witness’s accounts made it abundantly clear, that there was quarrel and fight between the appellant and the deceased and in course of the quarrel, the appellant hit the deceased with the iron rod at the heat of passion. Thus, the entirety of the evidence clearly demonstrates that there was no premeditation on the part of the appellant and the assault was made suddenly at the heat of passion in course of quarrel.

The Bench observed that, when the assault was made without premeditation, at the heat of passion in course of sudden quarrel and the appellant also did not take any undue advantage nor acted in cruelty, all the above factors had made the present case come squarely within the sweep of exception (4) to Section 300 IPC. However, said the Bench, having regard to the three injuries on the head and the weapon used, it could not be said that the appellant did not has intention to cause death or to cause such bodily injury as is likely to cause death.

Thus, taking note of the evidence in its entirety, the Bench opined that the conviction of the appellant under Section 302 IPC was not sustainable. Therefore, the impugned order was set aside and the appellant was convicted under Section 304 Part-I instead of 302 IPC. Further observing that the appellant had been in custody for more than 14 years, his sentence was reduced to the period already undergone. Accordingly, the appellant was directed to be released.[Debaru Majhi v. State of Assam, 2021 SCC OnLine Gau 422, decided on 05-03-2021]

Kamini Sharma, Editorial Assistant has reported this brief.

Case Briefs High Courts

Bom HC | Husband alleged that wife hid her actual date of birth & since he intended to marry a ‘Mangalik Yog’ girl, fraud was played upon him. Here’s how HC solved the matter

Bombay High Court: The Division Bench of A.S. Chandurkar and N.B. Surawanshi, JJ., upheld the decision of the family court.

Present appeal was filed under Section 19 of the Family Courts Acts, 1984 by the appellant-husband, in view of his petition being dismissed by the Family Court for judicial separation and in the alternative for a decree of divorce on cruelty and desertion ground.

According to the husband, he was Mangalik as per his horoscope and hence was in search of a girl who was having a Mangalik horoscope. As per the girl’s biodata, she was depicted as Mangalik.

After her marriage with the appellant she started living in the joint family of her husband where she usually used to stay aloof. Further, it has been stated that she avoided giving her educational certificates on the pretext that they were lost.

On receiving her educational certificates from her father, the husband was shocked to know her actual date of birth therefore she was Non-Mangalik. She had even failed BA-II.

The wife left the matrimonial house at midnight without informing anyone and during the search, she was found with her brother and brother in law who were taking her to her maternal home.

The husband along with his family members went to bring the wife back, but her parents refused to send her and also threatened to involve them in a false case. According to the husband, the wife lodged false complaint on that day.

Husband alleged that the wife caused mental and physical harassment to the husband. He, therefore, contended that the wife deserted him on account of false complaint lodged by the wife and the husband from time to time.

Due to the continuous torture by the wife, the life of the husband had become miserable. He was not in a position to concentrate on his work due to continuous harassment by the wife. The husband, therefore, lost all the hopes that the smooth relations between him and wife were possible. Hence, he filed the petition seeking divorce on the ground of cruelty and desertion.

Wife while declining all the above allegations claimed that she was ready to cohabit with the husband and hence prayed for the dismissal of the petition filed by the husband.

Family Court dismissed the petition of the husband, hence the husband preferred the present appeal.

Analysis, Law and Decision

Points for determination:

Whether the appellant is entitled for decree of divorce?
Whether the learned Family Court dismissing the petition of husband is legally correct?

Bench noted in the cross-examination of the appellant that he admitted that prior to his marriage there were negotiations as well as internal talks and his sister had inquired about the education of the respondent as well as her family background. The appellant also admitted that he married the respondent as he liked her. He also stated that he did not take decision in his life on the basis of horoscope. The marriage was performed after verifying the background, houses and all the details of both the families. His father in his evidence admitted that the horoscopes of the appellant and the respondent were not tallied. Further, he deposed that he did not have any document to show that the appellant was a Mangalik. He even admitted that at the time of marriage the age of the appellant was beyond marriageable age.

Hence, all these admissions belie the case of the appellant that there was cheating on the part of the respondent and her parents at the time of settlement of marriage.

In view of the above, Bench observed that there was no fraud played by the wife or her family.

Appellant failed to make out a case of fraud and even if it is assumed that there was misrepresentation in respect of the date of birth, it does not affect the matrimonial relations between the appellant and the respondent, as the appellant failed to prove that he was Mangalik and he intended to marry the girl having Mangalik Yog.

Father of appellant, admitted that for initial two years of the marriage, there was no dispute between the appellant and the respondent in respect of age difference as well as the respondent being non-mangalik. According to the respondent, the ill-treatment started only after the appellant got government job.

Therefore, evidence laid by the respondent did not spell out cruelty caused by the respondent to him.

With regard to Desertion, Court noted that as per the evidence led by the respondent she was beaten and her sister and her husband saw the marks of beating on her person. After they left, she was again beaten and threatened with life. Apprehending danger to her life, she had to take shelter in the house of neighbour Shri Gordey. From there, she called her parents and her brother, sister Kiran, her husband and others took her from the house of Shri Gordey to her parent’s house

Further, there was no material that depicted that the appellant tried to bring the respondent back for cohabitation.

“…since the appellant attributed cheating and fraud to the respondent and her parents, it is not possible to believe that he tried to bring the respondent back for cohabitation.”

Therefore, family court rightly appreciated the evidence on record and appellant failed to prove cruelty and desertion on the part of respondent-wife.

In view of the above discussion. The appeal against the family court’s decision was dismissed. [Kartik Narayan Dhawle v. Vaishali Kartik Dhawle, 2021 SCC OnLine Bom 241, decided on 23-02-2021]

Advocates who appeared before the Court:

B.R. Hindustani, Advocate holding for A.N. Ansari, Advocate for the appellant,

S.N. Thengari, Advocate for the respondent.

Case Briefs Supreme Court

Malicious allegations against spouse costing him his job and reputation not an attempt to preserve the relationship but a definite case of mental cruelty: Supreme Court

Supreme Court: In a case where an Army Officer’s wife made numerous malicious complaints against him to his superiors and various authorities, the 3-judge bench of Sanjay Kishan Kaul, Dinesh Maheshwari and Hrishikesh Roy, JJ held that such conduct cannot be considered to be “squabbles of ordinary middle class married life” and that it amounted to mental cruelty.

Holding that the husband was entitled to dissolution of his marriage, the Court said,

“In circumstances like this, the wronged party cannot be expected to continue with the matrimonial relationship and there is enough justification for him to seek separation.”

Background

The appellant, an Army Officer with M.Tech qualification and the respondent, a faculty in the Government P G College, Tehri with Ph.d degree got married on 27.9.2006 and lived together for few months at Vishakhapatnam and at Ludhiana. But from the initial days of married life, differences cropped up and since 15.9.2007, the couple have lived apart.

In the divorce proceeding, the appellant pleaded that he was subjected to numerous malicious complaints by the respondent which have affected his career and loss of reputation, resulting in mental cruelty. On the other hand, the respondent in her case for restitution of conjugal rights contended that the husband without any reasonable cause had deserted her and accordingly she pleaded for direction to the appellant, for resumption of matrimonial life.

Family Court’s finding

The Family Court gave a finding that the respondent had failed to establish her allegation of adultery against the husband. Further, it was held that the respondent had subjected the appellant to mental cruelty with her complaints to the Army and other authorities. Consequently, the Court allowed the appellant’s suit for dissolution of marriage and simultaneously dismissed the respondent’s petition for restitution of conjugal rights.

High Court’s finding

In appeal, while the Uttarakhand High Court found that the wife did write to various authorities commenting on the appellant’s character and conduct, the Division Bench opined that those cannot be construed as cruelty since no court has concluded that those allegations were false or fabricated. According to the Court, the conduct of the parties against each other would at best be squabbles of ordinary middle class married life. Accordingly, the High Court set aside the decree for dissolution of marriage and allowed the respondent’s suit for restitution of conjugal rights, under the impugned judgment.

Husband’s case

It was argued that the respondent had filed a series of complaints against him before the superior officers in the Army upto the level of the Chief of Army Staff and to other authorities and these complaints have irreparably damaged his reputation and mental peace. He cannot therefore be compelled to resume matrimonial life with the respondent, in the face of such unfounded allegations and cruel treatment. Moreover, the couple have been separated since 15.9.2007 and after all these years, restitution would not be justified or feasible.

Wife’s case

It was argued that the wife wrote letters and filed complaints only to assert her legal right as the married wife of the appellant and those communications should therefore be understood as efforts made by the wife to preserve the marital relationship.

Supreme Court’s analysis and finding

What amounts to Mental Cruelty?

For considering dissolution of marriage at the instance of a spouse who allege mental cruelty, the result of such mental cruelty must be such that it is not possible to continue with the matrimonial relationship. In other words, the wronged party cannot be expected to condone such conduct and continue to live with his/her spouse.

“The degree of tolerance will vary from one couple to another and the Court will have to bear in mind the background, the level of education and also the status of the parties, in order to determine whether the cruelty alleged is sufficient to justify dissolution of marriage, at the instance of the wronged party.”

Whether wife’s conduct in the present case amounts to mental cruelty?

The respondent had made several defamatory complaints to the appellant’s superiors in the Army for which, a Court of inquiry was held by the Army authorities against the appellant. Primarily for those, the appellant’s career progress got affected. The Respondent was also making complaints to other authorities, such as, the State Commission for Women and has posted defamatory materials on other platforms. As a result, the appellant’s career and reputation had suffered.

“When the appellant has suffered adverse consequences in his life and career on account of the allegations made by the respondent, the legal consequences must follow and those cannot be prevented only because, no Court has determined that the allegations were false.”

The Court also found fault with the High Court’s approach in dealing with the issue. The High Court had, without any definite finding on the credibility of the wife’s allegation, held that the wronged spouse would be disentitled to relief.

The Court also noticed that the allegations are levelled by a highly educated spouse and they do have the propensity to irreparably damage the character and reputation of the appellant.

“When the reputation of the spouse is sullied amongst his colleagues, his superiors and the society at large, it would be difficult to expect condonation of such conduct by the affected party.”

Further, the explanation of the wife that she made those complaints in order to protect the matrimonial ties also would not justify the persistent effort made by her to undermine the dignity and reputation of the appellant.

The Court hence held that the High Court was in error in describing the broken relationship as normal wear and tear of middle class married life.

“It is a definite case of cruelty inflicted by the respondent against the appellant and as such enough justification is found to set aside the impugned judgment of the High Court and to restore the order passed by the Family Court.”

Hence, the appellant was held entitled to dissolution of his marriage and consequently the respondent’s application for restitution of conjugal rights was dismissed.

[Joydeep Majumdar v. Bharti Jaiswal Majumdar, 2021 SCC OnLine SC 146, decided on 26.02.2021]

*Judgment by: Justice Hrishikesh Roy

Know Thy Judge | Justice Hrishikesh Roy

Appearances before the Court by:

For Appellant – Senior Advocate Gopal Sankaranarayanan

For respondent – Advocate Ahmad Ibrahim

Case Briefs High Courts

Bom HC | Husband making wild allegations that wife, her relatives, secured false certificates to get employment. Does husband’s conduct amount to ‘Mental Cruelty’ to wife? HC explains while upholding Family Court’s decision

Bombay High Court: The Division bench of A.S. Chandurkar and Pushpa V. Ganediwala, JJ., upheld the family court’s finding that “the behaviour and the conduct of the husband of making wild and unsubstantiated allegations resulted in causing mental cruelty to the wife.”

Factual Matrix

Appellant and the respondent were married since 2008 and a child was born out of the said wedlock. Appellant and his family started ill-treating the respondent. Respondent was driven away from her matrimonial home, after all, her gold articles were taken away.

In view of the above, she proceeded to file a case under Section 9 of the Hindu Marriage Act, 1955 for restitution of conjugal rights.

The above proceedings were however withdrawn and later, wife filed a petition seeking divorce on the grounds of cruelty and desertion. She alleged that the appellant and his family members were ill-treating the respondent physically and mentally. Respondent approached the Mahila Cell with her grievances and after understanding given to both the parties, they started residing together, but the same did not continue for long as the respondent found herself in an unsafe environment and proceeded to file the present proceedings.

Family Court held that the respondent had proved that the appellant was treating her with cruelty. Hence by the impugned judgment, the Family Court proceeded to pass a decree for divorce on the ground of cruelty. Being aggrieved the appellant has preferred this appeal.

Issue for Consideration:

Whether in the facts of the case the Family Court was justified in granting a divorce on the ground of cruelty?

Decision

Bench in view of the facts and circumstances found the Family Court’s decision to be justified.

“…making of unfounded allegations against the spouse or his/her relatives in the pleadings or making complaints with a view to affect the job of the spouse amounts to causing mental cruelty to the said spouse.”

Mental Cruelty: What led to it?

Court elaborated on the above point that the conduct of the husband of not pleading that the wife was suffering from epilepsy and stating the same for the first time in his deposition as well as making wild allegation that the wife and her relatives had secured false caste certificate without attempting to substantiate the said allegation resulted in causing mental cruelty to wife.

Bench also added regarding the husband’s conduct that, it appeared from his conduct in one or the other he intended to prejudice the service of the wife.

The impugned judgment was affirmed. [Thalraj v. Jyoti, 2021 SCC OnLine Bom 255, decided on 10-02-2021]

Advocates who appeared for the parties:

P.K. Mishra, Advocate for the appellant.

A.B. Bambal, Advocate for the respondent.

Case Briefs High Courts

All HC | Woman commits suicide after various cases against her, being subjected to harassment at matrimonial home. Can a case of abetment of suicide be established? HC discusses

Allahabad High Court: Dinesh Kumar Singh-I, J., while discussing abetment of suicide, stated that:

“…if some act either of omission or commission results in instigation to the victim to commit suicide, that act would also be treated to be an abetment.”

Factual Background of a Woman Subjected to Torture in demand of Dowry

Informant stated that his daughter was married with accused-applicant 1 in accordance with the Hindu rites and as per demands, dowry was provided. At the time of marriage, the applicant 1 (husband), applicant 2, Om Prakash Mishra (father-in-law), applicant 3, Rakesh Mishra, (brother-in-law) started demanding four-wheeler as additional dowry because of which ‘Bidai’ of his daughter could be done.

After a lot of persuasion, the Gauna was performed and when her daughter (deceased) went to her matrimonial home, all the accused-applicants started making taunts that marriage was performed for very cheap, further it was made clear to the deceased that unless the amount asked for is fulfilled, it would be difficult for her to live in matrimonial home peacefully.

Mental and Physical Harassment

Victim was harassed mentally and physically on various occasions, she was pressurized to give her jewellery to which she refused and was beaten up by banging her head against the wall and subjected to filthy language and threat of divorce.

Victim’s husband used to increase the volume of the T.V and close the door of the house so that screaming or weeping of the deceased would not go out, even the family members of the accused-applicant 1 used to call the victim and harass her on the phone.

Accused-Applicant 1 later, dropped the deceased near the house of the informant retaining the jewellery at his home and further filed for divorce.

Suicide

Later it was stated that, since the informant’s daughter used stay disturbed mentally because of the case having been filed against her and having received notices from the Court, she used to say that despite having been tortured, she could not get any case registered against the persons of her sasural and was passing time with her child in her parents’ home and even then, she was not being allowed to remain peacefully and in these circumstances after getting fed-up, on 23-10-2017 she committed suicide by hanging herself by a stole from the ceiling fan, for which the accused- applicants are responsible.

Analysis of the Bench

The above-stated circumstances could be treated to have been driven the deceased to commit suicide which could have taken to fall in the category of abetting the commission of suicide by the deceased.

Court expressed that:

Merely because the deceased died at the parent’s house, is being hammered as the main argument on the part of the applicant, to be the reason why abetment to commit suicide should not be taken to be established in this case even prima-facie.

Bench relied upon the Supreme Court’s decision in Guru Charan Singh v. State of Punjab, (2020) 10 SCC 200, wherein it was held that in order to give finding of abetment under Section 107, which is necessary to sustain the conviction of abetment of suicide under Section 306 IPC, it must be established that the accused instigated a person either by an act of omission or commission or by persistent cruelty or harassment.

Circumstances or atmosphere in the matrimonial home without the instigation of suicide being established in someway are not enough to sustain the conviction on abetment of suicide.

Conclusion

In the instant case, Court noted that it came on record that various litigations had been thrust upon the deceased from the side of the accused-applicants which might have generated a situation in which deceased found no way out but to commit suicide.

Bench stated that it may tour out to be not finally proved that the applicants were involved in the commission of this offence but in proceedings under Section 482 CrPC:

this Court cannot give finding in this regard as the evidence, which is likely to be recorded before the trial court, the said evidence would be appreciated by the said court then only finding can be returned on this point.

While dismissing the application, Court held that if the applicants appear and surrender before the Court below within 30 days and apply for bail, then the bail application would be considered and decided in view of the law laid down by this Court in Amrawati v. State of U.P.,2004 (57) ALR 290, as well as a judgment passed by Supreme Court in Lal Kamlendra Pratap Singh v State of U.P., (2009) 4 SCC 437.

In case, the applicants do not appear before the Court below within 30 days period, coercive action shall be taken against them. [Kranti Mishra v. State of U.P., 2021 SCC OnLine All 81, decided on 22-01-2021]

Advocates for the parties:

Counsel for Applicant: Shailesh Kumar Shukla, Rajiv Lochan Shukla

Counsel for Opposite Party: G.A., Akhilesh Kumar

Case Briefs High Courts

[Flashback] Ker HC | If a husband imputes infidelity and immorality on the part of his wife, would that amount to cruelty? Read How HC discusses applicability of S. 27 of Special Marriage Act

To marry or not to marry and if so whom, may well be a private affair. But, the freedom to break a matrimonial tie is not.

(N.G. Dastane v. S. Dastane: (1975) 2 SCC 326).

Kerala High Court: The Division Bench of C.K. Abdul Rehim and R. Narayana Pisharadi, JJ., while addressing the instant petition highlighted the observation that:

a petition for divorce under Section 27 of the Special Marriage Act, 1954 can be filed only when the marriage is solemnised or deemed to be solemnised under the provisions of that Act.

Husband in the instant case has challenged the divorce decree passed by the Family Court filed by the wife.

Section 27(1)(d) of the Special Marriage Act, 1954 provides that, subject to the provisions of that Act and the Rules made thereunder, a petition for divorce may be presented to the District Court either by the husband or the wife on the ground that the respondent has treated the petitioner with cruelty.

Petitioner and respondent had solemnised their marriage under the provisions of the Special Marriage Act, 1954.

Primary allegation against the respondent was that he was always suspicious of the moral character of the petitioner and that he always used to make accusations of infidelity and immorality against her.

Highlight in the petition

Imputations made by the respondent on the character of the petitioner, especially the accusation of illicit relationship by her with her colleagues in the profession.

Whether the conduct of the respondent imputing infidelity and immorality on the petitioner amounts to inflicting mental cruelty?

Mental cruelty is that conduct which inflicts upon the other party such mental pain and suffering as would make it not possible for that party to live with the other (See V. Bhagat v. D. Bhagat : (1994) 1 SCC 337)

Bench stated that to constitute cruelty, the conduct complained of must be something more serious that ‘ordinary wear and tear of married life’.

In the instant case, it was submitted that the respondent had publicly humiliated the petitioner by telling two strangers that his wife was sleeping with another man on the previous night.

Court noted that it was proved that the respondent had informed the colleagues of the petitioner in the hospital that she was having an affair with another doctor. Thus the respondent made the petitioner a subject of scandal in the hospital where she was working.

Due to the above-stated petitioner had to resign from the hospital on account of shame.

The above-discussed incidents proved that the respondent was in the habit of imputing infidelity and immorality on the part of his wife.

Injury to reputation is an important consideration in dealing with the question of cruelty.

In Raj v. Kavita : (2017) 14 SCC 194, Supreme Court held that, the conduct of a spouse levelling false accusations against the other spouse which would have the effect of lowering his/her reputation in the eyes of his/her peers, would be an act of cruelty.

In Narendra v. Meena: (2016) 9 SC 455, Supreme Court held that, levelling of absolutely false allegations and that too with regard to an extra-marital life, is quite serious and that can surely be a cause for mental cruelty.

With regard to the above discussions, it was observed that

Unending accusations and imputations can cause more pain and misery than physical beating.

Legal Cruelty

Bench expressed that, in a delicate human relationship like matrimony, one has to see the probabilities of the case. One has to see what are the probabilities in a case and legal cruelty has to be found out, not merely as a matter of fact, but as the effect on the mind of the complainant spouse due to the acts or omissions of the other.

Court further in line with the above discussions also stated that

Any woman with reasonable self-respect and power of endurance would find it difficult to live with such a suspicious and taunting husband.

Hence, the lower Court’s conclusion that the petitioner was treated with cruelty by the respondent and she was entitled to get divorce decree in light of the same was correct.

Special Marriage Act, 1954

Appellant’s Counsel submitted that since the marriage was solemnised in a church, the marriage solemnised under the provisions of Special Marriage Act, 1954 would not prevail and the petition for divorce filed under Section 27 of the said Act would not be maintainable.

Hence, the petition for divorce should have been filed under Section 10 of the Divorce Act, 1869.

The Indian Christian Marriage Act, 1872 is not applicable to territories which were comprised in the erstwhile State of Travancore – Cochin existed before the 1st November 1956.

The marriage between the parties in the instant case had taken place in an area comprised in the erstwhile Travancore State.

Therefore, the marriage between the parties in the instant case was not governed by the provisions of the above-mentioned statute.

High Court observed that when the marriage is not governed by any statutory law, the validity of the marriage has to be decided in accordance with the personal law applicable.

Further, it followed that there was no valid marriage solemnised between the parties in the church. If that be so, the marriage solemnised as per the provisions of the Special Marriage Act, 1954 is the valid marriage that existed between the parties.

Adding to the above, bench stated that had the marriage between the parties conducted in the church been valid, it was not necessary for the parties to solemnise the marriage under Chapter II of the Special Marriage Act, 1954.

The very fact that the marriage between the parties was solemnised by them under the provisions of Chapter II of the Special Marriage Act, 1954 would indicate that the parties were also aware and conscious of the fact that the marriage between them conducted in the church was not valid.

In Stephen Joshus v. J.D. Kapoor: 58 (1995) DLT 57,

the parties were Christians who had been married to each other under the provisions of the Indian Christian Marriage Act, 1872. A joint petition was preferred by them under Section 28 of the Special Marriage Act, 1954 seeking the dissolution of marriage by a decree of divorce by mutual consent.

The trial court dismissed the petition on the ground that the marriage was solemnised under the Christian Marriage Act whereas divorce had been sought under the Special Marriage Act and therefore, the petition was not maintainable.

The Delhi High Court held that sub-section (2) of Section 28 of the Special Marriage Act confers jurisdiction upon the District Court to grant a decree, declaring the marriage to be dissolved only on the satisfaction that the marriage has been solemnised under that Act and therefore, upheld the dismissal of the petition by the lower court.

In Aulvin v. Chandrawati: 1974 SCC OnLine All 285,

the husband filed a petition for divorce against the wife on the ground of desertion under Section 27 of the Special Marriage Act. The parties were admittedly Christians and they were married in a Christian church according to Christian rites.

The wife contended that since the parties were Christians and had been married under the provisions of the Indian Christian Marriage Act, 1872, the petition for divorce should have been filed under Section 10 of the Divorce Act, 1869 and the petition filed under Section 27 of the Special Marriage Act was not maintainable.

The Allahabad High Court held that the petition for divorce presented under Section 27 of the Special Marriage Act, 1954 was not maintainable since the marriage between the parties was neither solemnised nor registered under that Act.

Hence, the Court held that the marriage between the petitioner and respondent in the church was not valid and marriage solemnised under the provisions of the Special Marriage Act, 1954 would prevail over it. If only the marriage conducted between the parties in church was valid, the solemnisation of marriage under Chapter II of the Special Marriage Act, 1954 would have been an exercise in futility.

Therefore, the divorce petition under Section 27 of the Special Marriage Act, 1954 would not be maintainable.[Kiran Kumar v. Bini Marim Chandi, 2018 SCC OnLine Ker 13579, decided on 11-10-2018]

Advocates who appeared before the Court:

For Appellant:

SRI.S.V.PREMAKUMARAN NAIR
SMT.M.BINDUDAS
SMT.P.S.ANJU
SRI.P.K.JANARDHANAN
SRI.R.T.PRADEEP

For Respondent:

SMT.MAJIDA.S
SMT.MAJIDA.S CAVEATOR
DR. SEBASTIAN CHAMPAPPILLY AMICUS CURIAE

Case Briefs High Courts

Bom HC | Can Family Court entertain application for reliefs under Ss. 18 to 22 of the Protection of Women from Domestic Violence Act, 2005? HC answers

Bombay High Court: C.V. Bhadang, J., addressed whether the Family Court can application for reliefs under Section 18 to 22 of the Protection of Women from Domestic Violence Act, 2005.

The instant application was filed in regard to the transfer of Criminal Miscellaneous Application pending before the Judicial Magistrate for dissolution of marriage on the ground of cruelty.

Bench noted that the applicant was seeking reliefs against the respondent with regard to the dissolution of marriage and permanent custody of the children.

Respondent had filed Criminal Miscellaneous Application under Sections 12, 17, 18, 19, 20, 22 and 23(2) of the D.V. Act, seeking a residence order a protection order and monetary reliefs.

Principle Issue

Whether the Family Court can entertain the application, as framed and filed by the respondent before the Magistrate?

Court referred to the three decisions of Single Judges of this Court which have already covered the above issue:

Minoti Subhash Anand v. Subhash Manoharlal Anand (R.D. Dhanuka, J.),2015 SCC OnLine Bom 6113
Sandip Mrinmoy Chakraborty v. Reshita Sandip Chakraboarty ( Bharati H. Dangre, J.), 2018 SCC Online Bom 2709
Santosh Machindra Mulik v. Mohini Mithu Choudhari (S.C. Gupte, J.), Misc. C.A. No. 64 of 2019 decided on 15-11-2019

This Court has consistently held that in view of Section 7(2)(b) of the Family Courts Act, read with Section 26 of the Protection of Women from Domestic Violence Act, 2005, Family Court would get jurisdiction to entertain the application for reliefs under Section 18 to 22 of the D.V. Act.

“…if the Family Court can entertain an application under Sections 18 to 22, if filed under Section 26 merely because the application is styled as one under Section 12, would hardly make any difference.”

Hence, the present application was allowed and the Criminal Miscellaneous Application was transferred to the Family Court.[Hitesh Prakashmalji Mehta v. Aashika Hitesh Mehta, 2020 SCC OnLine Bom 983, decided on 28-09-2020]

Advocates who appeared before the Court:

Abhijit D. Sarwate for the Applicant.

Arvind Chavan for the Respondent.

Case Briefs Supreme Court

Man roped in in the dowry death of his brother’s wife freed after 2 decades as SC finds allegations against him vague

Supreme Court: The bench of NV Ramana* and Surya Kant, JJ has acquitted a man convicted under Section 498A read with Section 34 IPC for the death of his brother’s wife after it was found that the case against him was not proved beyond doubt.

Allegedly, after several instances of abuse at her matrimonial home, the deceased went to live with her parents. On the fateful day, her husband came to visit her and took her for a walk but came back alone and hurriedly packed his belongings to leave. When confronted about the whereabouts of the deceased, he said that the deceased was attending the call of nature and would be back soon. He left thereafter. When the deceased did not return after an hour, the complainant started searching for her and she was ultimately found dead, near a canal with strangulation marks on her neck.

Deceased’s husband, Brother-in-law (the appellant herein) and Father-in-law were convicted under Section 498-A read with Section 34 IPC.

In the present appeal, the deceased’s brother-in-law contended that the prosecution story comprises of vague allegations, unsubstantiated by evidence and that the entire family has been roped in this case. Thus, the conviction of the appellant cannot be sustained.

The prosecution had alleged that the appellant in the present case, had, along with his brother and father, demanded dowry of Rs. 10,000 from the family of the deceased at the time of the vidai ceremony and had continued to harass her for the non-payment of the same.

On perusal of the testimonies of the witnesses, the Court noticed that deceased’s father had named the appellant-accused in the same breath along with other accused persons and their family members accusing them of troubling the deceased for demand of dowry of Rs. 10,000/-.

However, apart from the vague allegations, no specific instance of hostile attitude or persistent demands of dowry have been pointed out by any of the witnesses. All other independent witnesses have turned hostile and have not supported the prosecution story. Also, the paternal uncle of the deceased and a witness named in the FIR, has not supported the prosecution story.

The Court, hence, concluded that on consideration of the oral testimonies of the witnesses, the ingredients of Section 498-A IPC have not been proved against the appellant by the prosecution at the standard of beyond reasonable doubt and, hence, acquitted the appellant.

The Court also discharged the bail bonds of the appellant who is out on bail since September, 2010.

[Nimay Sah v. State of Jharkhand, 2020 SCC OnLine SC 982, 02.12.2020]

*Justice NV Ramana has penned this judgment. Read more about him here.

Case Briefs High Courts

Del HC | Is making false allegation of impotency by wife against husband a ground for decree of divorce? Court determines

Delhi High Court: The Division Bench of Manmohan and Sanjeev Narula, JJ., refused to set aside the order of the trial court granting divorce to the respondent-husband.

In the instant appeal, Appellant-wife impugned the Judgment passed by Principal Judge, Family Courts whereby the Court while rejecting the relief sought under Section 12(1)(a) and (c) has allowed the petition of the respondent by granting divorce under Section 13(1)(ia) of the Hindu Marriage Act, 1955.

CRUELTY

Trial Court dissolved the marriage between the parties on the ground of cruelty within the meaning of Section 13(1)(ia) of the HMA.

IMPOTENCY

The nature and the extent of allegations made by the appellant are beyond any controversy. Appellant laid down the allegations under two different compartments:

(i) allegations pertaining to the impotency of the Respondent, and

(ii) allegations with respect to mistreatment, torture and dowry demand against the Respondent and his parents.

The above-stated allegations laid the foundation for the ground of cruelty.

Further, the respondent had brought in evidence to establish before the Court that he was not impotent and the false and untrue allegations were causing him mental stress and amounted to cruelty.

On physical examination by the doctor, the respondent was found to be a normal male adult with fully developed secondary sexual character and organs, normal endocrine and sexual function, and had no problem of impotence.

Trial Court concluded that the credibility of the witness could not be impeached, and since respondent suffered no medical infirmity that could render him incapable of consummating the marriage, the allegation of impotence made by the respondents was not proved.

DECISION

Bench stated that, since the witness was a very highly qualified medical expert with immaculate credentials, his testimony was rightly relied upon by the Trial Court, hence no interference by this Court is required.

Court agreed with the observations of the trial court and stated that the accusations were levelled by the appellant and the onus lay on her to establish the veracity of the same.

Appellant entirely failed to produce any medical or corroborated evidence that could remotely suggest that the respondent was medically unfit to consummate the marriage.

Next Question:

Whether a false allegation of impotence amounted to cruelty within the meaning of Section 13(1)(ia) of the HMA?

Cruelty can be physical or mental. High Court stated that it is primarily contextual, pertaining to human behaviour or conduct with respect to matrimonial duties and obligations.

Bench observed that it is essential to see whether the conduct of the party is of such nature, that a reasonable person would neither tolerate the same, nor be reasonably expected to live with the other party.

Decision of the Supreme Court in V. Bhagat v. D. Bhagat, (1994) 1 SCC 337 was relied upon, wherein it was held that:

“Mental cruelty in Section 13(1)(ia) can broadly be defined as that conduct which inflicts upon the other party such mental pain and suffering as would make it not possible for that party to live with the other. In other words, mental cruelty must be of such a nature that the parties cannot reasonably be expected to live together.”

“…What is cruelty in one case may not amount to cruelty in another case. It is a matter to be determined in each case having regard to the facts and circumstances of that case. If it is a case of accusations and allegations, regard must also be had to the context in which they were made.”

ALLEGATIONS MADE IN PLEADINGS

Bench stated that it is no longer res Integra that false, baseless, scandalous, malicious and unproven allegations in the written statement may amount to cruelty.

“If it is established from the evidence that the allegations were evidently false, then such baseless allegations made in the written statement can amount to cruelty and the Court can pass a decree of dissolution of the marriage.”

In view of the above, Court found no infirmity in the trial court’s observations that the allegation of the Appellant in the Written Statement with respect to the impotency clearly falls within the concept of cruelty as defined under the law.

Bench also observed that,

There can be no justification for any party to retaliate by making untrue and false allegations regardless of how provocative the allegations may be. If the Appellant was hurt by the allegations made by the Respondent, she had her legal remedies against the same. It did not certainly give her a carte blanche to make counter-allegations which were untrue and cause deep humiliation to the Respondent.

Adding to the above, Court stated that the imputations and allegations made by the Appellant in the Written Statement were repeatedly reinforced during the trial by giving suggestions to the Respondent and also to his expert witness during the course of their cross-examinations.

Bench held that,

The cruelty in the instant case is of enduring and profound nature.

Concluding the instant matter, Cout held that the appellant and the respondent have been separated for more than eight years and since the separation continued for a sufficient length at time, it can be presumed that the marriage has irretrievably broken down.

It was found that a prolonged and continuous separation and the matrimonial bond was beyond repair. Therefore, refusing to severe the matrimonial ties would cause further mental cruelty to the Respondent.

Hence, the trial court’s conclusion could not be faulted with. [Kirti Nagpal v. Rohit Girdhar, 2020 SCC OnLine Del 1466, decided on 20-11-2020]

Advocates for the parties:

Appellant: Manish Sharma, Ninad Dogra and Jigyasa Sharma

Respondent: Prabhjit Jauhar

Case Briefs High Courts

HP HC | Remedy under S. 125 CrPC and S. 12 of DV Act, 2005 are distinct and different; Law does not prohibit wife to proceed under both of the said statutory provisions simultaneously or otherwise; Petition dismissed

Himachal Pradesh High Court: Ajay Mohan Goel J., while rejecting the present criminal revision sought against the compensation and maintenance allowed by the lower court, clarified the legal position on simultaneous remedy under the Domestic Violence Act and the Criminal Procedure Code.

Brief Facts

Facts of the case are enumerated herewith;

That a petition filed by the respondent herein, under Section 12 of the Protection of Women from Domestic Violence Act, 2005, stood allowed by the Court of Judicial Magistrate, titled as Palbi Sharma v. Sachin Sharma, vide order dated 23-12-2016, directing the present petitioner to pay monthly maintenance to the tune of Rs 3000 per month to the present respondent/wife from the date of the order.
That, in addition Rs 20000 was also ordered by way of compensation by the Court against the proven acts of cruelty committed by the present petitioner.
That the petitioner was also directed to provide accommodation to the wife, on rent comprising of one room, kitchen bathroom and toilet or in the alternative to provide said accommodation in his own house if he was in a position to do so.
That the petitioner filed an appeal against the abovementioned decision which was dismissed by the Court of Sessions Judge vide judgment dated 29-09-2018.
That the wife also filed an appeal against the order passed by the Court of Judicial Magistrate, which was also dismissed by the Appellate Court vide the same order.
That the wife has not preferred any further petition against the adjudication made in her appeal by the Appellate Court, therefore, this Court is not making any observation qua rejection of the said appeal but, feeling aggrieved by the dismissal of the appeal preferred by the petitioner, the present Court herein addresses this case as filed under Section 397 read with Section 401 of the Criminal Procedure Code.

Issue

Whether the present criminal revision filed by the petitioner maintainable?

Decision

While rejecting the present criminal revision, the Court concurred with the findings of the lower court and said that both, the amount granted under Section 125 CrPC, amounting Rs 3500 and an amount of Rs 3000, ordered under Section 12 of the Domestic Violence Act, in addition to the compensation of Rs 20000, awarded against the proven charges of cruelty, stand justified and “by no stretch of imagination, can be said to be on the higher side”. The Court further clarified that, “The provisions of Section 125 of the Criminal Procedure Code and Section 12 of the Protection of Women from Domestic Violence Act, 2005 are distinct and different. Law does not prohibit the wife to proceed under both of the said statutory provisions simultaneously or otherwise.”[Sachin Sharma v. Palvi Sharma, 2020 SCC OnLine HP 2109, decided on 26-10-2020]

Sakshi Shukla, Editorial Assistant has put this story together

Hot Off The Press News

Allegations made by women for being subjected to gang-rape in lockup: NHRC takes suo motu cognizance

The National Human Rights Commission issued notice to the Chief Secretary, Director General of Police and the Director-General of Prisons, Madhya Pradesh after taking suo motu cognizance about the allegations made by women on five cops for gang rape in lockup.

It is mentioned in the news report that a 20-year-old woman has levelled allegations that she was kept in lock-up for 10 days in the month of May this year and was subjected to rape by 5 police personnel including the Police Station Incharge and SDPO of Mangawan area of Rewa district of Madhya Pradesh. The woman, as mentioned in the news report, was an accused in a case of murder and presently she is lodged in judicial custody. The incident occurred in the month of May and it came to the knowledge of the District Judge after a period of five months. Even the prison warden did not have the courage to report the matter to the higher authorities.

It is further added that as alleged by the victim woman, she was subjected to rape between 09-05-2020 to 21-05-2020 while the police contradict, to be arrested on 21-05-2020. The female constable had protested at that time but she was rebuked by her seniors.

The Commission considered the vulnerable position of the victim. She was in police custody when she was allegedly subjected to utmost cruelty and sexual assault by the 5 police personnel. Even a protest made by a female police official went in vain. Very serious allegations have been levelled by the victim woman. Public servants from the law enforcement agencies, who are supposed to safeguard the citizens especially the women and the people from the vulnerable classes of the society have allegedly committed the heinous crime against a woman in their custody.

The Commission directs that the matter may be investigated by a senior police officer, not below the rank of the Deputy Inspector General of Police.

National Human Rights Commission

[Press Release dt. 19-10-2020]

Factual Matrix

Analysis, Law and Decision

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Provisions in question

Background

Analysis

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Cruelty

False Allegation of Impotency

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High Court’s Analysis and Finding

12 Long Years and No Appearance

Unclean Hands

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Dowry deaths – Facts and Figures

Law on dowry death – The trajectory

Dowry Death and Criminal Trial – Law Summarised

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Background

Analysis

Was the offence under Section 304-B IPC made out?

Was the offence under Section 306 IPC made out?

Conclusion

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Factual Matrix

No Response for 7 long years

Analysis, Law and Decision

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Statements before the SDM

Analysis, Law and Decision

Defective Investigation

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Background

Family Court’s finding

High Court’s finding

Husband’s case

Wife’s case

Supreme Court’s analysis and finding

What amounts to Mental Cruelty?

Whether wife’s conduct in the present case amounts to mental cruelty?

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Highlight in the petition

Legal Cruelty

Special Marriage Act, 1954

Advocates who appeared before the Court:

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Principle Issue

Advocates who appeared before the Court:

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CRUELTY

IMPOTENCY

DECISION

ALLEGATIONS MADE IN PLEADINGS

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