I was invited by Focus News Channel today to debate on Supreme Courts recent decision that a man’s illicit affair can not be construed as Cruelty under IPC 498A. Their cab got stuck and hence I couldn’t make it to the show (though I was connected via phone later.) Like all my debates, I had prepared some notes on this matter too and thought since I was not able to speak all, why not blog it.
SO as shared by the man’s counsel on TV – the matter relates to Rakesh Ghusabhai Chaurasia – a man not so well to do – who became a victim of LOVE. His love blossomed when he was a child, and she remained the love of his life. As destiny would have it, she got married to someone else and he to someone else too. His sweethearts marriage broke and she started meeting him again (please understand the woman comes back to him.) He falls again for her. His marriage collapses. She complains and he given in writing that he would stop meeting her. She doesn’t believe him and doubts that he is still involved. Situation worsens. He eventually confesses, he can not live without his love. She breaks down and decides to go back to her parent’s house after the festival of Holi. By this time, both of them had already started living separately in the same house. Barely 3 days before the festival, she consumes poison and ends her life. Her family complains and police files an FIR loaded with sections – 498A, 306 etc etc. Since marriage is already more than 8 years old, it doesn’t register a dowry death. Not only is the man locked up, his father, mother, his paramour, elder brother, his wife are all accused in the case. More details of the case can be filed below in the Judgment. Trial court convicts him. High Court also convicts him. SC acquits all, taking little time to realize that the HC and Trial court perhaps got swayed by emotions!
NOW – Why does this debate become important to me?
My fight in this field basically started with a similar case, opposite in gender. I was facing this woman who was adulterous and when her relationship was exposed, she cried DOWRY! When I asked lawyers/judges about what can be done in such a case, they told me “Even if a woman sleeps with another man in the house of her husband, he can barely do anything against her” I was shocked! But they told me the truth. While IT IS A CRIME for a man to venture out of his marriage, no matter how unhappy he is, no matter how abusive his wife is, no matter if his wife makes him feel like a piece of shit, no matter how arrogant his wife is, no matter how CHOKED he feels in the marriage, IT IS A MATTER OF RIGHT today for women – whether in rural pockets or urban pockets to venture out of marriage if they feel like! Reasons could be as ridiculous as her husband not earning enough but she can just do it and get away with it.
Read this: Out of all Paternity test cases conducted annually in Gujrat, in 98% cases, women fail the test!!! Which means that in 98% cases, the father is not the biological father of the child. Let me go a step ahead and confidently tell you that out of these cases 95% cases would be where husband would be facing a dowry case, domestic violence case by his wife. She would be asking for a huge settlement amount and alimony even though she is the wrong doer in the relationship. So, basically even if she has given birth to someone else’s child, there is little you can do. AND if you raise voice against it, you have DOZEN of cases waiting for you. Not only you – your entire family – because dragging someone in a dowry case/498A is as easy as saying “She/He demanded dowry from me”. You don’t need any evidence as you can read in the judgment below. The allegations on the mother and father of the man were that they snatched her salary – SO they can be 498A accused!
Read this: http://www.dnaindia.com/mumbai/report-woman-living-with-husband-cannot-seek-maintenance-from-paramour-bombay-high-court-2057973
So, a woman who is already married, gets into a relationship with another man and has filed for maintenance from that man..instead of chiding her for indulging in adultery, the court is telling that a woman can not seek maintenance from paramour. I mean…how more ridiculous can it be?
Watch this: https://www.youtube.com/watch?v=9HndQ8w2vXU
Two men commit suicide as their wives are busy with paramours. Leave 44/42 minute suicide video telling their stories. In one case, man had earlier written to the police of mental harassment by wife, but little did the police do anything to help him. He eventually hanged himself.
IPC 497 – the law for adultery does not hold a woman guilty of adultery but instead the man who she is adulterous with as the one guilty. It doesn’t matter whether the man knew that the woman is married or not, it is HE WHO PAYS. All that a husband can do if his wife is adulterous is file for divorce on grounds of adultery which is NOTHING LESS THAN IMPOSSIBLE to be proven in the court of law. And if he objects to it, he gets several cases by wife.
Another good read on adultery by “THE ELITE WOMEN” who are cozying upto and running away with their gym instructors, taking huge PAYOUT as well.
Have a good laugh reading this too: http://timesofindia.indiatimes.com/city/hyderabad/Teacher-dupes-married-woman/articleshow/46293026.cms A married woman leaves her husband and kids and runs away with her lover and then later gets him only arrested. I MEAN …what the HECK!
Lemme add some spice to all this. WOMEN ORGANIZATIONS have now demanded that whether the child is born from the wedlock or outside the wedlock, a husband MUST pay for the CHILD. This demand is a part of the amendments to the domestic violence act.
When a man is adulterous, WOMEN label him cheap, sick, irresponsible, pervert, womanizer, bastard and much more. His wife is treated as the biggest victim and most women organizations ask such women to file several cases on him and “TEACH HIM A LESSON”
But when a woman is adulterous, even then it is a MAN’S FAULT. He must have been a psycho, alcoholic, wife beater, sexual assaulter or Impotent, stingy, leech that his woman went to another man.
When a woman is adulterous, it’s earth shattering for a man. When a man is adulterous, it’s emotional trauma for a woman. Still, laws have absolutely no concern for men whose wives cheat on them. A woman should NEVER BE PUNISHED come what may. She is always treated that gullible doll who is such a victim of circumstances.
IF THIS IS NOT GENDER BIAS WHAT IS?
If this wasn’t enough, I am now coming across cases almost on a daily basis where wives have got their husbands murdered with help of their paramours. A simple google search of #HusbandMurder or #CrimeAgainstMen would take you to recent such cases that I have tweeted. I know of a sister whose brother was killed barely a month after his marriage by his wife and her paramour. His head smashed while his wife dropped crocodile tears at home.
The ANCHOR on the show kept discussing if this SC verdict would give a free hand to married men to be adulterous. I beg to ask her – which court verdict told women that they can go and indulge in adultery? Why is it presumed that men want nothing in life – a peaceful home/family/children/decent job – but WOMEN ONLY? Why is it presumed that if laws weren’t there all that men on this earth would be doing is go around and have SEX?
Why is it that a man is called Sexual Pervert if he goes around and gets laid while a woman is called Sexually Liberated if she is getting laid?
The BIGGEST QUESTION OF ALL – WHY IS IT THAT A MAN’S ENTIRE FAMILY IS TAGGED CRIMINAL IF HE HAS “ALLEGEDLY” DONE SOMETHING WRONG? I have never seen police registering case against entire family and relatives of a woman if she has gone wrong in a marital relationship. THEN WHY ARE MEN AND THEIR ENTIRE FAMILIES BEING VICTIMIZED?
To end this note, before the judgment begin, know that this entire family has been doomed for life. All family members were incarcerated for long before getting out on Bail. They had to leave their home. They had to become NOMADS. Now, they would be starting their life from scratch. WHY – because a WOMAN DIED!
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IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 262 OF 2009
Ghusabhai Raisangbhai Chorasiya & Ors. … Appellants
Versus
State of Gujarat … Respondent
J U D G M E N T
Dipak Misra, J.
The present appeal, by special leave, is directed against the
judgment of conviction and order of sentence passed by the High Court of
Gujarat at Ahmedabad in Criminal Appeal No. 444/2005 whereby the
Division Bench has affirmed the conviction recorded by the learned
Additional Sessions Judge, Jamnagar, who had found the appellants guilty
of the offences punishable under Section 498A, 306, 201 and 114 of the
Indian Penal Code, 1860 (‘IPC’ for short) and sentenced Ghusabhai
Raisinghbhai Chorasia, appellant no.1 to suffer five years imprisonment,
Rakesh Ghusabhai Chorasia, appellant no.2 to suffer rigorous
imprisonment for seven years and to pay a fine of Rs.500/- with a
default clause and other accused persons, namely, Bakuben W/o Ghusabhai
Chorasia and Jasuben @ Gaduben Rakeshbhai, appellant nos. 3 and 4 herein
to suffer rigorous imprisonment for three years and to pay fine of
Rs.250/- with a default clause under Section 306 IPC. That apart,
separate sentences were imposed under Section 498A and 201 with the
stipulation that all the sentences would run concurrently. Be it noted,
the appellants were tried along with two other accused persons, namely,
Sangitaben w/o. Vijaybhai and Vijay Ghusabhai Chorasia who were
acquitted by the learned trial Judge. It is also apt to note here that
the State had also preferred two criminal appeals, one for enhancement
of sentence and the other challenging the acquittal of the other two
accused persons and both the appeals were dismissed along with the
appeal filed by the appellants in a common judgment.
2. The prosecution case, bereft of unnecessary details, is that the
marriage between the deceased Biniben and Rakesh was solemnized
approximately eight years before the date of occurrence, i.e. 4.3.2004.
As put forth by the prosecution, Rakesh, husband of the deceased, had
illicit relationsHIP with Jasuben, a divorcee. Despite the said
situation two children were born in the wedlock but the compatibility
between the husband and wife and the harmony of family life could not be
sustained. When the first child was three months old, the deceased was
driven out by her husband and she came to her parental home and stayed
there for sometime. After the intervention of the elders and relatives
a settlement was arrived at and thereafter she came to stay in her in-
laws house. It was the further case of the prosecution that the husband
was keen in his extra-marital affair and that had led to more marital
discord and bitterness. The in-laws, as alleged, used to take away the
income earned by her. A time came when she was compelled to stay on the
terrace of the house where she committed suicide on 4th of March, 2004.
3. As the case of the prosecution further gets uncurtained, the dead
body was cremated without informing the parents of the deceased and the
factum of the death was reported by the father-in-law of the deceased on
14th of March, 2004 and eventually the mother of the deceased came to
know about the death on 17th of March, 2004 and thereafter reported at
the Police Station in Jamnagar. After the criminal law was set in
motion, the investigating agency proceeded with the investigation and
recorded the statements of 25 witnesses and eventually placed the charge-
sheet under Sections 498A, 306 and Section 201 read with Section 114 of
the Indian Penal Code, before the competent court. After the charge-
sheet was filed, the learned Magistrate committed the matter to the
Court of Session.
4. The accused persons abjured their guilt and wanted to be tried.
5. During the trial, the prosecution in order to establish the
charges levelled against the accused persons, examined 25 witnesses and
exhibited certain documents.
6. The learned trial Judge placing reliance on the ocular as well as
the documentary evidence came to hold that four accused persons, namely,
father-in-law A-1, husband A-2, mother-in-law A-3 and the woman with
whom the husband was having illicit relationship, A-4, guilty of the
offences. However, the trial Judge acquitted the elder brother of the
husband and his wife for lack of evidence.
7. Being dissatisfied with the aforesaid judgment of conviction and
order of sentence, the accused filed Criminal Appeal No. 444 of 2005.
As stated earlier, the State preferred Criminal Appeal No. 2408 of 2005
for enhancement of sentence and Criminal Appeal No. 2410 of 2005
assailing the judgment of the acquittal of two accused persons.
8. The High Court appreciating the evidence brought on record,
declined to interfere in the appeals preferred by the State and
resultantly all the appeals stood dismissed.
9. Be it noted, the principal witnesses on whom the prosecution
relied are Dakshaben Shantilal Shah, PW-9, a social worker at Vikas
Vidhyalay (Vadhvan), Miraben Devsinhbhai, PW-21, sister of the deceased,
Champaben Devsinhbhai, PW-18, mother of the deceased, Kanaiyabhai
Devsinhbhai, PW-19, brother of the deceased and Natubhai Hirabhai, PW-
17, Sarpanch of village Rajsitapur.
10. Accused persons in their statements recorded under Section 313
took the plea that there was a divorce between the deceased and the
accused No. 2, her husband; that she was staying on the terrace of the
house; that she committed suicide by consuming poison; and that the
accused persons had no role in it. The defence, to substantiate its
plea, examined one witness and got two documents exhibited.
11. We have heard Mr. Harish Raichura, learned counsel for the
appellants and Mr. Anurag Ahluwalia, learned counsel for the State.
12. On a careful scrutiny of the findings of the learned trial Judge
and that of the High Court, it is noticeable that both the Courts have
found that cruelty, as alleged by the prosecution under Section 498A IPC
was established as a result of which the deceased committed suicide. It
is quite clear from the findings and evidence on record that there was
no demand of dowry. The learned trial Judge as well as the High Court
has proceeded on the base that there was cruelty as per the first limb
of Section 498A IPC.
13. The singular issue that requires to be scrutinized is whether
there was such cruelty by the husband and his relations that could have
driven the deceased to commit suicide. The stand of the accused
persons, as has been indicated hereinabove, was that the husband had
already divorced the deceased and she was staying on the terrace. On a
proper x-ray of the material brought on record, it is manifest that the
prosecution has brought on evidence, three documents, exhibits 65 to 67,
on record to show that there was divorce. The sister of the deceased,
Miraben Devsinhbhai, PW-21, has categorically deposed that she had
talked to the deceased on telephone before her death and the deceased
had told her that there has been a divorce between her husband and
herself and she was staying on the terrace of the house and will leave
for the parental home after the ‘Holi’ festival.
14. The documents that have been produced by the prosecution, namely,
Exhibits 67 to 69 have not been believed by the learned trial Judge as
well as the High Court on the ground that there is some unacceptable
discrepancy.
15. At this juncture, it is appropriate to mention that the Holi
festival in the said year fell on 6.3.2004 and the occurrence took place
on March 4, 2004. It is also noticeable that the sister of the deceased
had volunteered to speak about the conversation of divorce. The
document shows that there was a divorce as per the customs. There is
material on record to show that she was staying on the terrace. In this
factual backdrop what is to be seen is whether there has been a cruelty
which compelled her to commit suicide. In this regard, we may
fruitfully refer to Section 498A of the IPC, which reads as under:
“498A. Husband or relative of husband of a woman subjecting her to
cruelty.-Whoever, being the husband or the relative of the husband of
a woman, subjects such woman to cruelty shall be punished with
imprisonment for a term which may extend to three years and shall also
be liable to fine.
Explanation.-For the purpose of this section, “cruelty” means-
(a) any wilful conduct which is of such a nature as is likely to drive
the woman to commit suicide or to cause grave injury or danger to
life, limb or health (whether mental or physical) of the woman; or
(b) harassment of the woman where such harassment is with a view to
coercing her or any person related to her to meet any unlawful demand
for any property or valuable security or is on account of failure by
her or any person related to her to meet such demand.”
16. This Court in Girdhar Shankar Tawade V. State of Maharashtra[1],
examining the scope of 498A, has observed thus:
“The basic purport of the statutory provision is to avoid “cruelty”
which stands defined by attributing a specific statutory meaning
attached thereto as noticed hereinbefore. Two specific instances have
been taken note of in order to ascribe a meaning to the word “cruelty”
as is expressed by the legislatures: whereas Explanation (a) involves
three specific situations viz. (i) to drive the woman to commit
suicide or (ii) to cause grave injury or (iii) danger to life, limb or
health, both mental and physical, and thus involving a physical
torture or atrocity, in Explanation (b) there is absence of physical
injury but the legislature thought it fit to include only coercive
harassment which obviously as the legislative intent expressed is
equally heinous to match the physical injury: whereas one is patent,
the other one is latent but equally serious in terms of the provisions
of the statute since the same would also embrace the attributes of
“cruelty” in terms of Section 498-A.”
17. In Gurnaib Singh V. State of Punjab[2], while analyzing the
aforesaid provision, it has been opined that Clause (a) of the
Explanation to Section 498A IPC defines cruelty to mean “any willful
conduct which is of such a nature as is likely to drive the woman to
commit suicide”. Clause (b) of the Explanation pertains to unlawful
demand and Clause (a) can take in its ambit mental cruelty.
18. From the aforesaid authorities it is quite clear that the first
limb of Section 498A, which refers to cruelty, has nothing to do with
demand of dowry. In the present case, in fact, there is no demand of
dowry. If the evidence is appropriately appreciated, the deceased was
pained and disturbed as the husband was having an illicit affair with
the appellant no.4. Whether such a situation would amount to cruelty
under the first limb of Section 498A IPC is to be seen. A two-Judge
Bench of this Court in Pinakin Mahipatray Rawal V. State of Gujarat[3],
while dealing with extra marital relationship, has held thus:
“Marital relationship means the legally protected marital interest of
one spouse to another which include marital obligation to another like
companionship, living under the same roof, sexual relation and the
exclusive enjoyment of them, to have children, their upbringing,
services in the home, support, affection, love, liking and so on.
Extramarital relationship as such is not defined in the Penal Code.
Though, according to the prosecution in this case, it was that
relationship which ultimately led to mental harassment and cruelty
within the Explanation to Section 498-A and that A-1 had abetted the
wife to commit suicide.”
xxxxx xxxxx xxxxx
“We are of the view that the mere fact that the husband has developed
some intimacy with another, during the subsistence of marriage and
failed to discharge his marital obligations, as such would not amount
to “cruelty”, but it must be of such a nature as is likely to drive
the spouse to commit suicide to fall within the Explanation to Section
498-A IPC. Harassment, of course, need not be in the form of physical
assault and even mental harassment also would come within the purview
of Section 498-A IPC. Mental cruelty, of course, varies from person to
person, depending upon the intensity and the degree of endurance, some
may meet with courage and some others suffer in silence, to some it
may be unbearable and a weak person may think of ending one’s life.
We, on facts, found that the alleged extramarital relationship was not
of such a nature as to drive the wife to commit suicide or that A-1
had ever intended or acted in such a manner which under normal
circumstances, would drive the wife to commit suicide.”
The Court further proceeded to state:
“Section 306 refers to abetment of suicide. It says that if any person
commits suicide, whoever abets the commission of such suicide, shall
be punished with imprisonment for a term which may extend to 10 years
and shall also be liable to fine. The action for committing suicide is
also on account of mental disturbance caused by mental and physical
cruelty. To constitute an offence under Section 306, the prosecution
has to establish that a person has committed suicide and the suicide
was abetted by the accused. The prosecution has to establish beyond
reasonable doubt that the deceased committed suicide and the accused
abetted the commission of suicide. But for the alleged extramarital
relationship, which if proved, could be illegal and immoral, nothing
has been brought out by the prosecution to show that the accused had
provoked, incited or induced the wife to commit suicide.”
19. After holding as aforesaid, the Court found on facts and
especially referring to suicide note that one can infer that the
deceased was so possessive of her husband, and was always under an
emotional stress that she might lose her husband and that apart she had
exonerated the husband and accordingly it would not come within the
scope and ambit of Section 306 IPC.
20. Coming to the facts of the present case, it is seen that the
factum of divorce has not been believed by the learned trial Judge and
the High Court. But the fact remains is that the husband and the wife
had started living separately in the same house and the deceased had
told her sister that there was severance of status and she would be
going to her parental home after the ‘Holi’ festival. True it is, there
is some evidence about the illicit relationship and even if the same is
proven, we are of the considered opinion that cruelty, as envisaged
under the first limb of Section 498A IPC would not get attracted. It
would be difficult to hold that the mental cruelty was of such a degree
that it would drive the wife to commit suicide. Mere extra-marital
relationship, even if proved, would be illegal and immoral, as has been
said in Pinakin Mahipatray Rawal (supra), but it would take a different
character if the prosecution brings some evidence on record to show that
the accused had conducted in such a manner to drive the wife to commit
suicide. In the instant case, the accused may have been involved in an
illicit relationship with the appellant no.4, but in the absence of some
other acceptable evidence on record that can establish such high degree
of mental cruelty, the Explanation to Section 498A which includes
cruelty to drive a woman to commit suicide, would not be attracted.
21. Presently, adverting to the involvement of the other accused
persons, that is, appellant nos. 1, 3 and 4, we find that there is no
allegation of any kind of physical torture. The evidence brought on
record against them with regard to cruelty is absolutely sketchy and not
convincing. It has been alleged that the mother-in-law used to rob her
money which she earned as wages. The said fact has really not been
established. As far as appellant no. 4, Jesuben, is concerned, there is
only one singular allegation that at one public place, i.e. in a ‘mela’,
she had threatened the deceased that she would be divorced by her
husband. On the basis of the said evidence, it is difficult to sustain
the conviction under Sections 306 and 498A IPC. Once we are holding
that the accused-appellants are not guilty of the offence under Section
306 and 498A IPC, the conviction under Section 201 IPC is also not
sustainable.
22. In view of the aforesaid analysis, the appeal is allowed, the
conviction and sentence of all the appellants are set aside. As they
are on bail, they be discharged of their bail bonds.
………………………………………………..J.
[DIPAK MISRA]
…………………………………………………J.
[SUDHANSU JYOTI MUKHOPADHAYA]
NEW DELHI
FEBRUARY 18, 2015.
———————–
[1] (2002) 5 SCC 177
[2] (2013) 7 SCC 108
[3] (2013) 10 SCC 48
martyrsofmarriage 