Girlfriend in life, no curelty to wife: Supreme Court

In a recent decision [Sunita Jha v. State of Jharkhand] the Supreme Court has declared that the mere fact of another women living with the husband does not entitle the wife to sustain the claim of cruelty against her in terms of Section 498A of the Indian Penal Code. At best, according to the Supreme Court, such fact could be a ground to claim divorce. 

The Bench inter alia observed as under;

6. The case of the Appellant before us is that the High Court erred in law in holding that the Appellant became a member of the family of Mukund Chandra Pandit merely because she was living with him in his house allegedly as his wife. Mr. Gaurav Agrawal, Advocate, appearing for the Appellant, contended that Section 498A IPC was very clear as to who could be charged under the said Section. For the sake of convenience, the said Section is reproduced hereinbelow :-

“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 willful 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.”

7. It will be seen from the aforesaid provisions that it is either the husband or the relative of a husband of a woman who subjects her to cruelty, who could be charged under the said Section. Such provision could not apply to a person who was not a relation of the husband when the alleged offence is said to have been committed. It was contended that the Appellant was in no way related to the husband and was not his wife as held by the High Court so as to bring her within the ambit of Section 498A IPC and the charge framed against her was, accordingly, invalid and liable to be quashed. Reliance was placed by Mr. Agrawal on the decision of this Court in U. Suvetha v. State [(2009) 6 SCC 757], wherein the aforesaid question was directly in issue. This Court took up for consideration the question as to the persons who could be charged under Section 498A IPC having particular regard to the phrase “relative of the husband” occurring in the said Section. This Court categorically held that neither a girlfriend nor a concubine is a relative of the husband within the meaning of Section 498A IPC, since they were not connected by blood or marriage to the husband. 

8. The other question which fell for determination was if a husband was living with another woman besides his wife, whether the same would amount to “cruelty” within the meaning of Section 498A. It was held that if such other woman was not connected to the husband by blood or marriage, the same would not attract the provisions of Section 498A I.P.C., although it could be an act of cruelty for the purpose of judicial separation or dissolution of marriage under the marriage laws, but could not be stretched to amount to “cruelty” under Section 498A IPC.

9. While construing the provisions of Section 498A IPC in the given circumstances, this Court observed that Section 498A being a penal provision deserved strict construction and by no stretch of imagination would a girlfriend or even a concubine be a “relative”, which status could be conferred either by blood connection or marriage or adoption. If no marriage has taken place, the question of one being relative of another would not arise.

10. Mr. Agrawal urged that the High Court had misconstrued the provisions of Section 498A  vis-à-vis the Appellant in relation to the said Section and the impugned order of the High Court was, therefore, liable to be set aside along with the order of the learned Sub-Divisional Judicial Magistrate rejecting the Appellant’s prayer for discharge from the complaint case filed by Asha Rani Pal.

11. An attempt was made on behalf of the complainant, Asha Rani Pal, to justify the order passed by the learned Magistrate as also the High Court on the ground that the Appellant must be deemed to have acquired the status of wife of Mukund Chandra Pandit by her conduct and the fact that they had been living together as husband and wife.

12. We have considered the submissions made on behalf of the Appellant and the complainant wife. It may be indicated that the husband Mukund Chandra Pandit has not been made a party to these proceedings. However, having regard to the view which we are taking, his presence is not necessary for disposing of the present appeal. 

13. Section 498A IPC, as extracted hereinabove, is clear and unambiguous that only the husband or his relative could be proceeded against under the said Section for subjecting the wife to “cruelty”, which has been specially defined in the said Section in the explanation thereto. The question as to who would be a relative of the husband for the purpose of Section 498A has been considered in detail in U. Suvetha’s case (supra). We are entirely in agreement with the views expressed in the said case and we agree with the submissions made on behalf of the Appellant that the learned Judge of the High Court committed an error in bestowing upon the Appellant the status of wife and, therefore, a member of Mukund Chandra Pandit’s family. The doctrine of acknowledgement would not be available in the facts of this case. No doubt, there is direct allegation against the Appellant of cruelty against the Respondent No.2, Asha Rani Pal, but as indicated in U. Suvetha’s case (supra), the same would enable the Respondent No.2 to proceed against her husband under Section 498A I.P.C. and also against the Appellant under the different provisions of the Hindu Marriage Act, 1955, but not under Section 498A I.P.C. 

14. The Appeal, therefore, succeeds and is allowed. The judgment of the learned Single Judge of the Jharkhand High Court impugned in this Appeal is set aside and the cognizance taken against the Appellant on 6th February, 2006, by the learned Sub-Divisional Judicial Magistrate,Dumka, under Section 498A IPC, is hereby quashed.

Have a look at the decision.

Women accountable for domestic violence: High Court

The Kerala High Court decided against the women while the Madhya Pradesh High Court in their favour. Now the Delhi High Court has declared that women are liable and can be prosecuted under the provisions of the Domestic Violence Act, 2005. Taking note of the fact that other High Court have also adopted the line of reasoning similar to Kerala High Court; being Madras High Court, Rajasthan High Court, Andhra Pradesh High Court and Gujarat High Court; a Division Bench of the Delhi High Court declared that women could be prosecuted against under the Act.

Despite noting that the definition under the Act was not happily worded but keeping in view the purpose and intent of the law, the High Court observed that "courts are not supposed to throw their hands up in the air expressing their helplessness. It becomes the duty of the Court go give correct interpretation to such a provision having regard to the purpose sought to be achieved by enacting a particular legislation."

The High Court declared that there was nothing wrong with including women within the scope of the Act given the fact that the Domestic Violence Act was a means of social control and intended to mould the social thought and outlook against "a wife or a female living in a relationship in the nature of marriage". The High Court took note of these functions of law in the following terms;

29. For centuries, jurists and legal scholars have debated about the functions of law, viz., why do we need law, and what does it do for society? More specifically, what functions does the law perform? Though there may not be unanimity amongst the scholars of law on the precise functions, it is widely recognized that the recurring theme of law includes; (i) social control, (ii) disputes settlement and (iii) social engineering. Though there are many methods of social control, law is considered one of the forms of former social control by prescribing social norms within which individuals/members of the society have to behave. Likewise, law discharges the functions of disputes settlement, i.e., disputes are settled by application of the law of land providing for legal rights and obligations. Apart from these, many scholars are of the view that principal function of law in modern society is social engineering (with which we are concerned here). It refers to purposive, application and direct social change initiated, guided and supported by law. Roscoe Pound captures the essence of this function of law when he states:

“For the purpose of understanding the law of today, I am content to think of law as a social institution to satisfy social wants – the claims and demands involved in the existence of civilized society – by giving effect to as much as we need with the least sacrifice, so far as such wants may be satisfied or such claims give effect by an ordering of human conduct through politically organized society. For present purposes I am content to see in legal history the record of a continually wider recognizing and satisfying of human wants or claims or desires through social control; a more embracing and more effective securing of social interests; a continually more complete and effective elimination of waste and precluding of friction in human enjoyment of the goods of existence – in short, a continually more efficacious social engineering. (1959:98-99).”

30. Though it will remain a matter of never ending debate as to whether law brings social change or social changes in society brings law (i.e. whether law “leads” change or “follows” change), it has to be accepted that many times laws are passed to ensure normative changes in the society. Abolition of Sati Pratha by an appropriate enactment is a sterling example. In broad terms, “change” is of two types: continuous or evolutionary and discontinuous or revolutionary. The most common form of change is continuous. This day-to-day incremental change is a subtle, but dynamic, factor in social analysis.

31. The journey from enacting Dowry Prohibition Act, 1961 to Amendment in IPC by incorporating Section 498A and 304B to the passing of DV Act is aimed at bringing desirable and much needed social change in this particular sphere. Therefore, Courts are required to give an interpretation which subserves the aforesaid purpose with which the law is enacted. The contention advanced by the petitioner, which negates the right given to women by this legislation has to be eschewed. 

Have a look at the decision of the Delhi High Court.

Filing false cases against spouse amounts to 'cruelty': High Court

In a recently reported decision [AIR 2010 Raj 56], the Rajasthan High Court has declared that filing false cases against spouse amounts to cruelty so as to entitle the other spouse to obtain a decree of divorce. The High Court was dealing with the challenge to the validity of a decision of the lower court which had granted a decree of divorce on the ground that the treatment of the husband at the hands of the wife had been one of cruelty where she had instituted a number of cases against him and her in-laws which she admitted later to be false.

In these circumstances, upholding the divorce, the High Court observed inter alia as under;

Where there has been a long period of continuous separation it may fairly be concluded that the matrimonial bond is beyond repair. This Court has seriously made an endeavour to reconcile the parties but the breakdown appears to be irreparable. Even learned counsel for the appellant has frankly admitted that the parties at this stage cannot reconcile and live together forgetting their past as a bad dream. The consequence of preserving an unworkable marriage which has long ceased to be effective are bound to be a source of greater misery for the parties.

In (2005) 2 SCC 22 the Apex Court has observed 

“The expression “cruelty” has not been defined in the Act. Cruelty can be physical or mental. Cruelty which is a ground for dissolution of marriage may be defined as wilful and unjustifiable conduct of such character as to cause danger to life, limb or health, bodily or mental, or as to give rise to a reasonable apprehension of such a danger. The question of mental cruelty has to be considered in the light of the norms of marital ties of the particular society to which the parties belong, their social values, status, environment in which they live. Cruelty, as noted above, includes mental cruelty, which falls within the purview of a matrimonial wrong. Cruelty need not be physical. If from the conduct of the spouse same is established and/or an inference can be legitimately drawn that the treatment of the spouse is such that it causes an apprehension in the mind of the other spouse about his or her mental welfare then this conduct amounts to cruelty”.

In this case, the appellant has not only instituted a number of cases against the respondent and his family members but she has also made allegations against the respondent regarding illicit relations with his Bhabhis and niece which are worst types of allegations and she has also admitted these allegations to be untrue. The conduct of the appellant clearly amounts to cruelty to the respondent.

In view of the above discussion, it is clear that the argument of learned counsel for the appellant that the appellant has not treated the respondent with cruelty has no force. There is also no substance in the argument of learned counsel for the appellant that the respondent has forgiven the appellant as no such evidence is available on the record.

From the analysis and evaluation of the entire evidence, it is clear that the appellant has resolved to live in agony only to make the life a miserable hell for the respondent as well. This type of adamant attitude leaves no manner of doubt that the appellant is bent upon treating the respondent with mental cruelty. It is thus clear that learned Family Court has not committed any error by deciding issue no.1 against the appellant.

This case reminds me the words of a famous jurist that to live with a man (woman) you hate is a slavery but to be compelled to submit to his (her) embraces is a misfortune too great even for slavery itself.

In view of the fact that the parties have been living separately for a number of years and a large number of cases have been instituted by one party against the other party, it is clear that the marriage between the parties has broken down irretrievably and there is no chance of their coming together or living together again.

Have a look at the decision.

Routine implication of Husband's in-laws for dowry allegations incorrect: High Court

This decision might come as a sigh of relief to the so-called dowry-harassed husbands. Holding that there is a reckless tendency for estranged wives to implicate the in-laws for allegations of dowry and noting the observation of other judges in this regard, the Delhi High Court in a recent decision has quashed the order of the lower court directing framing of charges for dowry and other cases against the relatives of the husband who had been living separately. 

The High Court observed inter alia as under;

18. In the light of the aforesaid proposition if one examines the authorities cited by the learned Senior Counsel one cannot but agree that the proposition of law which is enunciated in all these cases is that invariably whenever matrimonial relations have turned sour there is a tendency on the part of the complainant whether it is done by her of her own free will or at the instigation of her parents, brothers, sisters or even legal advice to make all kinds of wild and reckless allegations against the entire family of the husband.

19. By such a conduct not only the gravity of the offence against the husband who is the main accused gets diluted, even the parents in law or other relative who are not ordinarily living in a joint family are enroped and weakened because she loses on her credibility. It is in this background that in Mukesh Rani's case (supra), the learned Single Judge of Punjab and Haryana High Court has observed that

“whenever there is a matrimonial dispute between the husband and wife for the fault of husband other relations of the husband that is the brothers, sisters, parents are also roped in the litigation on the allegation of demand of dowry, whether they are living jointly or separate and sometimes even the parents who are aged 80 to 90 years and are unable to walk or talk and the sisters living at far off places in the matrimonial house are involved.”

20. The learned Judge had shown the concern of the Court that the provisions of Section 498A/304B IPC and the presumptions which are permitted u/s 113A and 113B of the Evidence Act, 1872 by the legislature in its wisdom, for the protection of women, have been put to greater misuse by the girl‟s side than to the actual use.

21. Similar is the observation in Anu Gill’s case by the learned Single Judge of our own High Court wherein the proceedings against the sisters in law themselves were quashed by the High Court. It is not correct on the part of the learned Magistrate to observe that there were no allegations against the sister in laws in Anu Gill‟s case and therefore, the case was distinguishable. On the contrary, admittedly there were allegations against the sister in law which was considered to be totally vague, unworthy of credence by the Court. The allegations which were made by the complainant in Anu Gill’s case was that the in-laws of the complainant had demanded various gold items apart from a sum of Rs.11 lacs from the complainant to meet the requirement of the cash expenses for the “chuchak” ceremony of Anu Gill by the parents of the husband.

22. The nature of allegations in the two cases are bound to be different and merely because a generic term of 'in-laws' was used, it did not mean that the complainant in the reported case did not make allegations against Anu Gill who would also form part of 'in–laws'.

23. Another learned Single Judge of our own High Court in case titled Savitri Devi Vs. Ramesh Chand 2003 (11) DMC 328 has again echoed the same sentiments of the Court that though the provision in question has been made by the good intentions of the legislature but implementation has left a very bad taste and it has become counter productive as there is a growing tendency amongst women to perpetuate an action against the parents in law, relatives irrespective of the fact whether they are minor school going children, distant relatives. Because of the FIR having been registered against them, they are made to run for protection of their liberty.

24. In the light of the aforesaid concern which the different Judges of different High Courts have shown from time to time, one thing is very clear that as and when the relations between husband and wife get strained, then allegations are levelled not only against the husband but all his relatives with a view to teach him a lesson.

25. I have purposely not referred to all the authorities cited by the learned counsel for the petitioner because they are also echoing almost the same sentiments.

26. Coming back to the facts of the present case, I feel that this is precisely what has happened in the instant case also that although the marriage had taken place in the month of June, 2000, but the relations got strained may be on account of alleged illegal demands having been made by the husband or the relatives who were ordinarily living with him in a joint family but certainly it is highly improbable to assume that the married sisters of the husband of the complainant who got married much prior to the marriage of the complainant and were living in their own matrimonial homes would come down simultaneously to the matrimonial home of the complainant and subject her to demand of dowry and the consequent cruelty. Therefore, on this ground itself, I feel that the charge against the present petitioners is not prima facie made out nor is any 'grave suspicion' to have summoned such an offence available on record to put them to trial.

29. I cannot refrain from mentioning that in a case of this nature, the Court has to be very sensitive and it should not get swayed by emotions which the complainant may be suffering from with a view to put persons or relatives who are totally unconnected with the incident to the facing of the trial in itself in present times is a great deal of punishment especially in the light of the fact that the same continues endlessly for years together on account of heavy load on the learned MM.

Have a look at the decision.

Marital Rape !!!

Having sexual intercourse with a woman against her will or without her free consent is traditionally defined as rape, which laws of most countries view as an abhorable crime and provide for strict punishment. It is also recognized as the violation of the human rights of a woman and in international laws, in certain circumstances it is even treated as a crime against humanity and race. The proponents, however, evade the question when it comes to the issue of 'Marital Rape' i.e. rape by the husband during the course of marriage. The dilemma does exist: Is marital rape an offence? Is it a violation of a human rights of the woman? Or, is it an indulgence too much on the part of the society to inquire into the conduct of the parties during conjugal relations?


Since the consolidation of criminal laws in India in 1860 (with the 'Indian Penal Code'), India has viewed marital rape as an exception to the offence of rape. Section 375 of the Code, which specifics which acts constitute an offence of rape excludes "sexual intercourse by a man with his own wife" from the offence provided that the wife is not "under fifteen years of age". It was suggested that the law be amended by the Law Commission (in its 42nd Report in 1971) and marital rape be criminalized. However before any action could ensue, the Commission turned turtle and in its 84th Report (in 1980) did not agree with the restructuring of the provision as suggested in the earlier report. The matter was again considered by the Commission in 2000 wherein the Commission decided to continue with the earlier stand. The 172nd Report notes;

Representatives of Sakshi wanted us to recommend the deletion of the Exception, with which we are unable to agree. Their reasoning runs thus: where a husband causes some physical injury to his wife, he is punishable under the appropriate offence and the fact that he is the husband of the victim is not an extenuating circumstance recognized by law; if so, there is no reason why concession should be made in the matter of offence of rape/sexual assault where the wife happens to be above 15/16 years. We are not satisfied that this Exception should be recommended to be deleted since that may amount to excessive interference with the marital relationship.

Posed with this issue the Nepal Supreme Court  on the other hand declared the act of marital rape as a violation of the human rights of a woman. The Government sought to defended the law by stating before the Court that "since it is against the Hindu religion, traditions and values that a husband rapes his wife by exercising threat, fear, pressure and force, unlike what has been contended by the petitioner, the current law contains that provision".

However, in an elaborate decision giving wide variety of reasons to declare the law as invalid, the Court ruled out the objection of the Government stating that "Hindu religion and its literature stress on purity, cleanliness and behavior of good faith in conjugal life, it can not be said that Hindu religion and traditions exempts the heinous act of rape to wife. Sexual intercourse in conjugal life is a normal course of behavior, which must be based on consent. No religion may ever take it as lawful because the aim of a good religion is not to hate or cause loss to any one. Thus, the pleading of the learned government attorney appearing on behalf of the respondent can not be accepted."

The Court also made seething comments on the nature of the activity sought to be defended by the Government, posing extensive insights on the issue of human rights of a woman. The Court observed;

- Whereas, a marriage does not mean women to turn in to slaves. Thus, women do not lose human rights because of marriage. So long as a person lives as a human being he/she is entitled to exercise those in-born and natural human rights. To say that the husband can rape his wife after the marriage is to deny independent existence, right to live with self respect and right to self-determination. Any act which results in non-existence of women, adversely affects on self-respect of women, infringes upon right of women to independent decision making or which makes women slaves or an object or property is not compatible in the context of modern world, rather it is a stone-age thought.

- Whereas, to forcibly compel women to use an organ of her body against her will is serious violation of her right to live with dignity, right to self-determination and it is an abuse of her human rights. The Constitution has guaranteed the right to privacy. Therefore, in the light of those international instruments on human rights, it cannot be said that marital rape is permissible.

- If an act is an offence by its very nature, it is unreasonable to say that it is not the offence merely because of difference in person committing the act. It will yield discriminatory result, if we interpret that an act committed to any other woman is an offence and is not an offence, if the same act is committed to one's own wife. There is no justification in differentiating between the women who are wives and other women.

-  Whereas, it has been contended in the written replies that it is beyond imagination that a husband commits rape to his wife, and it is sure that so long as there is love and good faith between husband and wife, there is no situation of rape. It is normal state of affairs, however, sometimes reality of life becomes different and strange than the normal state. Where a wife is treated as an object or property or a means of entertainment and exploitation, her personal health and her needs are ignored in an irrational and inhuman manner and in that situation, an unnatural and brutal act of rape of wife is committed. Such situation may be rarest of rare. Therefore, it is imperative in a married life to discourage the brutal act of rape. If marital rape is punishable, a pure, healthy and clean atmosphere will be created in society in places of disorder and imbalance. In our country, law has prohibited child marriage very long ago but this social evil is still in practice. If marital rape is made punishable, it would help eliminate this social evil as well.

Even in India, various scholarly write-ups [1] [2] have argued for the discontinuation of the existing legal position and for criminalization of marital rape. However the legal position continues to remain the same where marital rape is still legal. It may be argued that the law to this regard has been diluted to certain extent by the enactment of the Domestic Violence Act which gives the right to a woman to prosecute perpetrators of violence in her matrimonial home. However how far would such a legal argument sustain on a charge of marital rape is doubtful.

Domestic violence: An introspect

Newspapers across the length and breadth of India are reporting almost daily more and more cases of domestic violence taking place. Surprising the enactment on domestic violence became a law only a couple of years back in 2005 but it is being used now on a fairly regular scale. Being a practitioner in the matrimonial side, I have an occasion to see through a large number of such cases on a daily basis. The rampant use and misuse of this enactment has occasioned this comment.

In my view the genesis of this problem lies inter alia in the decline of values in the society which is disturbing the family peace. The age-old concept of joint families is dwindling and nuclear families are becoming a norm, leading to absence of senior family members, carrying the experiences and wisdom to guide the just-married / recently married during conflict / problem times. It would specially be noted that these issues are arising largely amongst young couples, who are unable to find a solution to the conflicts and change in inter-personal roles arising out of the new situation they are in, one brought forth by marriage.

Causes of domestic violence, according to me, are numerous. And surprisingly illiteracy is not a cause for even well-read women, well aware of their rights and special privileges conferred by the legislation are invoking these special provisions on a daily basis just to fend their egos and satisfy the mortal selves. The notions of higher wisdom and better sense seem to have eroded and are not to be found these days.

Then the economic roles which man and woman having been playing in this country having undergone a huge change in the recent times, artificial thoughts of economic superiority are beginning to haunt the family. With differences in salaries, the higher salaried spouse is beginning to dominate the family decisions, which may not necessarily be taken in the correct perspective, leading to tensions and quarrels and even break-ups.

Then there are numerous other so-called ‘compatibility-issues’ haunting the social life of the members of the familial structures, which cannot be resolved without instilling the notions and importance of family values.