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Rajan v. The State of Madhya Pradesh [1]

Hon’ble Justice Vivek Rusia observed as under:

“Nowadays the very purpose of the insertion of Section 498-A in the Penal Code, 1860 with the object to punish the husband or his relatives, has been defined. In most of the cases, this section is being misused as observed by several High Courts and the Hon’ble Supreme Court. The Hon’ble Supreme Court in Arnesh Kumar v. State of Bihar : [(2014) 8 SCC 273] has observed that the relatives are unnecessarily being made accused under section 498-A of the I.P.C.”

“The cases are lodged under Section 498-A of the Penal Code, 1860 only to settle the matrimonial dispute. Sometimes the wife lodges the FIR immediately after receipt of the summons from the Family courts. Nowadays there is a package of 5 cases against the husband and family members in family court and the criminal court under I.P.C., the Hindu Marriage Act and the Protection of Women from Domestic Violence Act, 2005,”

The aforesaid case was preferred under Section 482 of the Code of Criminal Procedure, 1973 (“Cr.P.C.”), for quashing the criminal proceedings arising out of the F.I.R. lodged under Section 498-A of the Indian Penal Code, 1860 (“I.P.C.”). The Court in the above mentioned matter was adjudicating an application under the aforesaid Section, wherein the Applicant was seeking to quash the First Information Report (“F.I.R.”) lodged against the inlaws of wife who had alleged offenses under Section 498-A i.e. “Husband or relative of husband of a woman subjecting her to cruelty” and 323 i.e. “Punishment for voluntarily causing hurt”, read with Section 34 i.e. “Acts done by several persons in furtherance of common intention”, of the I.P.C.. The Hon’ble High Court had made its clear stance over the increasing events of misusing the legal machinery to settle the matrimonial disputes. It had observed that only general and omnibus allegations were levied under Section 498-A of I.P.C. against the family of the husband and his distant relatives.

The Court deemed it fit to exercise its powers under Section 482 of Cr.P.C., for protecting the relatives of the husband who are involved in cases only to pressurize them and settle personal scores. The Court exercises its powers under Section 482 of Cr.P.C. to quash the criminal proceedings, to do complete justice and prevent misuse of the process of law.

The facts and circumstances in brief were that a complaint was lodged in 2018 by the wife where she alleged that her husband is not happy with her family owing to the reason that his monetary demands were not fulfilled during the marriage. She further alleged that, owing to the aforesaid, she was maltreated by her in-laws and thrown out of the house. An F.I.R. was lodged for the alleged incidents against husband, his mother, father, wife of his brother.

The husband argued that the place at which the F.I.R. is made was only the venue where their marriage had taken place. He further argued that the wife left her matrimonial home out of her own free will and accord and thereby she had been residing in Mumbai and subsequently went to Australia. The husband further pointed out that there had been a delay in lodging the F.I.R.. He further pointed out the proceedings initiated by him in the Family Court in Australia.

The husband denied all the allegations made by the wife and presented a parallel story wherein he alleged that his wife confessed to having a premarital relationship after their wedding was solemnized. It was also contented that his subsequent mails to her did not mention any demands of dowry.

Though the wife contended that at this stage, a mini trial cannot be made to ascertain the truth of the story, the Hon’ble Court began by stating that from the oral testimony on record, there is no cogent supporting evidence supporting the claims of the wife under Section 498-A of the I.P.C..

The Hon’ble Court pointed out a year delay in lodging the F.I.R. that too without substantiating such a delay. The Hon’ble Court further pointed out the inconsistencies such as inappropriate jurisdiction, as the accused persons were permanent residents of Gurgaon, whereas the F.I.R. was made in another far place where only the marriage took place. It was also observed therein that the allegations of incidents made in the F.I.R. are all incidents of demand of dowry and maltreatment which allegedly occurred in Gurgaon. Thus, as aforesaid, the Hon’ble Court concluded that the F.I.R. was wrongly registered at Indore i.e. the place of Marriage venue where the F.I.R. was lodged.

For the allegations under Section 323 of the IPC which deals with voluntarily causing hurt, the Court observed that such allegation is only verbal in nature and there is no corroboration with Medical Legal Certificate (MLC).

It was pointed out that both the spouses are residing in Australia and only the parents are being subjected to harassment by the criminal proceedings. It was further categorically observed that the sister in law has been unnecessarily dragged into the F.I.R..

As for the husband, it was found that he was not even present in the country when such a commission of crime had happened. The court further marked the case as a matter of reverse cruelty.

In the end, the Hon’ble Court observed that such a situation where the couples are living and working abroad and their parents are left enduring legal and matrimonial disputes has become very common.

While considering all the aforesaid, the Court decided to quash the criminal proceedings i.e. the F.I.R., associated Chargesheet and entire proceedings in the criminal case.

The Package of Cases

As observed by the Hon’ble High Court of Madhya Pradesh in case of Rajan supra, the package includes cases under I.P.C., proceedings under Hindu Marriage Act, 1955 and the proceedings under the Protection of Women from Domestic Violence Act, 2005.

Proceedings under Section 498-A of I.P.C. (Similar to Section 85 of the Bharatiya Nyaya Sanhita, 2023).

The Section reads as under:

“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-

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
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.”

The purpose of this Section is to punish the husband or his relatives. In many cases various High Courts and the Hon’ble Apex Court have observed that the provision has been subject to grave misuse. The Hon’ble Supreme Court in case of Arnesh Kumar v. State of Bihar [2], observed that the relatives, without any cogent reason and ground, were made accused under section 498-A of I.P.C.. The Court further, issued directions to the police and magistrates for the procedure to be followed while dealing with such disputes. The guidelines stated that there shall not be automatic arrest when an information has been lodged under Section 498-A of I.P.C. but according to the procedure as prescribed under Section 41 of Cr.P.C. is to be followed while making such an arrest. The procedure includes a checklist as per the contents Section 41(1)(b) of Cr.P.C. (Similar to Section 35 of the Bharatiya Nagarik Suraksha Sanhita, 2023) which are as under:

“Section 41(b) against whom a reasonable complaint has been made, or credible information has been received, or a reasonable suspicion exists that he has committed a cognizable offence punishable with imprisonment for a term which may be less than seven years or which may extend to seven years whether with or without fine, if the following conditions are satisfied, namely:–

(i) the police officer has reason to believe on the basis of such complaint, information, or suspicion that such person has committed the said offence;

(ii) the police officer is satisfied that such arrest is necessary–

(a) to prevent such person from committing any further offence; or

(b) for proper investigation of the offence; or

(c) to prevent such person from causing the evidence of the offence to disappear or tampering with such evidence in any manner; or

(d) to prevent such person from making any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to the police officer; or

(e) as unless such person is arrested, his presence in the Court whenever required cannot be ensured, and the police officer shall record while making such arrest, his reasons in writing:

2[Provided that a police officer shall, in all cases where the arrest of a person is not required under the provisions of this sub-section, record the reasons in writing for not making the arrest.]

(ba) against whom credible information has been received that he has committed a cognizable offence punishable with imprisonment for a term which may extend to more than seven years whether with or without fine or with death sentence and the police officer has reason to believe on the basis of that information that such person has committed the said offence;]

(c) who has been proclaimed as an offender either under this Code or by order of the State Government; or

(d) in whose possession anything is found which may reasonably be suspected to be stolen property and who may reasonably be suspected of having committed an offence with reference to such thing; or

(e) who obstructs a police officer while in the execution of his duty, or who has escaped, or attempts to escape, from lawful custody; or

(f) who is reasonably suspected of being a deserter from any of the Armed Forces of the Union; or

(g) who has been concerned in, or against whom a reasonable complaint has been made, or credible information has been received, or a reasonable suspicion exists, of his having been concerned in, any act committed at any place out of India which, if committed in India, would have been punishable as an offence, and for which he is, under any law relating to extradition, or otherwise, liable to be apprehended or detained in custody in India; or

(h) who, being a released convict, commits a breach of any rule made under sub-section (5) of section 356; or

(i) for whose arrest any requisition, whether written or oral, has been received from another police officer, provided that the requisition specifies the person to be arrested and the offence or other cause for which the arrest is to be made and it appears therefrom that the person might lawfully be arrested without a warrant by the officer who issued the requisition.”

The aforesaid checklist shall be submitted before the Magistrate, if the police seek further custody of the arrested person. The checklist shall be submitted along with reasons and acquired evidence which justifies their action of arrest. Further, the magistrate has to aver the reasons for approving detention after considering the report of the police. Also if police seeks presence of the accused, a notice under Section 41-A of the Cr.P.C (Section 35(3) of the B.N.S.S.) i.e. Notice of Appearance is to be served within two weeks of the initiation of case. Where any concerned authority fails to comply with the Hon’ble Court’s guidelines, a contempt of court shall be issued before the appropriate High Court and the judicial officer will face departmental inquiry initiated by the concerned High Court.

Furthermore, in case of Preeti Gupta v. State of Jharkhand [3], the Hon’ble Apex Court observed that the complaints under Section 498-A of I.P.C. are made in the heat of the moment. These are trivial in nature and lack proper deliberations. There has been a huge influx of complaints which are not presented with a bonafide purpose. There is a tendency of implicating the husband and his near relatives or one living at a distant place [4]. The Courts have to practice extreme care and pragmatism while dealing with such complaints. Not only this, but a prolonged criminal trial often results in rancor, bitterness and acrimony of the ties amongst parties. Needless to mention that the husband or his near relatives often remain in jail which further renders their relation sour and reduces the possibility of amicable settlement.

The Complaint under Section 498-A is often read with offenses under Section 323(Voluntarily Causing Hurt), 506 (Criminal Intimidation), 354 (Outraging modesty of women) and section 3 and 4 of the Dowry Prohibition Act, 1961. Recently the Allahabad High Court in the case of Akhilesh Keshari v. State of UP [5], while dealing with allegations of cruelty and demand of dowry levied by the Second wife, has held that since the divorce has not been granted from the first wife, the marriage with the second is invalid. Thus, offense under Section 498-A is not made out, however the offense under Section 3 and 4 of the D.P.A. will hold and will be redressed.

Furthermore, the High Court of Patna in case titled SG v. State of Bihar [6] has observed that only calling the wife “Bhoot” or “Pisach” itself will not amount to cruelty. It is observed by the court that in a soured matrimonial relationship, often both the husband and wife use filthy language, however, all such accusations do not attract the veil of cruelty.

The Hon’ble High Court of Gujarat in case of Rameshbhai Dhanjibhai Solanki v. State of Gujarat [7], while dealing with a petition under Section 482 of Cr.P.C., had ruled that the allegations under Section 498A of I.P.C. are maintainable even at the instances of a divorced wife however, it is essential that such allegations have occurred while their marriage was in effect or was subsisting. In the case, the husband had obtained a divorce, after which the wife preferred the complaint against the husband and his relatives. The Hon’ble Court while perusing Section 498A of I.P.C. observed that the term “husband” and “relatives of the husband” are interpreted as either in their role as a husband or in the state of being a husband and it is not construed as “former husband” or “ex-husband” or “relatives of the former or ex husband”. Be that as it may, the word “woman” and not “wife”, implies that even a woman who is divorced can effectively make a complaint under Section 498A of I.P.C., provided such allegations of events occurred while their marriage was subsisting.

2. Hindu Marriage Act, 1955

Section 13 of the HMA, enumerates grounds of divorce. In 1976, the Marriage Laws (Amendment) Bill, was introduced to add clause (ia) i.e. cruelty and (ib) i.e. desertion, to Section 13 and Section 13A i.e. alternative relief in form of judicial separation. The object and reasons for the same were to liberalize the provisions of divorce, rapid and expeditious disposal of the proceedings under the Act and to remove ambiguities and loops which were discovered after passing of the Act [8]. While adding the aforesaid provisions, the intention of the Parliament was to liberalize the provisions while at the same time being conscious of giving protection to the estranged wife. The word Cruelty as provided under Section 13 (1)(ia) of the act, does not have any specified meaning and thus the court may exercise a very wide discretion as per the facts and circumstances of the case. The relevant consideration may be social setting, educational qualifications, financial status, employment, caste, community, age and place.

In the case of “Vishwanath Agrawal v. Sarla Vishwanath Agrawal” [9], Hon’ble Supreme Court observed that the expression of cruelty shares a direct nexus with the conduct and behavior of the parties. It further depends on their lifestyle, strata, temperaments, emotions, relationships and social status.

The definition of cruelty may be different for both the husband and wife and thus an elastic and broad approach is being taken. The laws pertaining to divorce were framed on the concept of fault theory and thus need libertarian approach.

In such a petition of divorce the burden lies on the petitioner, however, being of civil nature, it need not to be proved beyond reasonable doubt but with preponderance. The Court under Section 23 (1) (Decree in proceedings) of H.M.A., the court always needs to move with a word of caution that such power is not misused to obtain relief.

It is always the case that misery and agony arising out of the disputes of partners, the children become victims of such clashes, though they may have no role in the breakdown of marriage.

In the case titled Vallabhi v. R.Rajasabahi [10], the court while pursuing instances similar to that of a package of cases had granted relief of divorce to the husband on the ground of mental cruelty that the wife is suspecting the husband’s character and integrity while leveling allegations of extra marital affairs in front of colleagues. It was also noted that the wife had also filed a police complaint against the husband and his female colleagues without specifically revealing their names. The Court noted that such a complaint would also amount to cruelty when it is not backed by any evidence. The Court also perused over the judgment of K.Srinivas Rao v. D.A. Deepa [11], where Hon’ble Apex Court observed that unfounded, indecent, and defaming allegations levied against the other spouse or against his relatives, and filing false complaints, issuing notice and making it public through news not only affects the business prospect and job of the spouse but their repetitions would further amounts to mental cruelty [12].

3. Protection of Women from Domestic Violence Act, 2005 (“D.V. Act”).

The Act came with the purpose of providing protection, relief and compensation to the aggrieved person, against whom the act of violence has been committed. An application under Section 12 is made by the aggrieved person or any person on behalf of the aggrieved. The Aggrieved person is defined under Section 2(a) of the Act which states as under:

“Any women who is, or has been, in a domestic relationship with the respondent and who alleges to have been subjected to any act of domestic violence by the respondent”.

Section 2(f) defines domestic relationship as,

“a relation between two persons who live or have, at any point of time, lived together in a shared household, when they are related by consanguinity, marriage, or through a relationship in the nature of marriage.”

In case of “D.Velusamy v. D. Patchaiammal “[13], Hon’ble Apex Court while examining the provisions of the Act held that the word “domestic relationship” under the Act not only refers to the relationship of marriage, but it also includes a relationship in the nature of marriage.

Chapter IV of the Act incompasses Section 12 to 29 which includes procedures for grant of orders and reliefs. An application has to be made under Section 12 of the Act for the reliefs such as for residing in shared household (Section 17), for protection against the other party (Section 18), for getting a residence (Section 19), obtaining monetary reliefs (Section 20), order for custody (Section 21) and compensation (Section 22).

In the recent case from the High Court of Karnataka, tiled XYZ v. Gurumanjunatha [14], the court rejected the Petition of the wife who challenged the order of appellate court for reducing the maintenance and compensation which was granted in her favor by the magistrate court on an application made under Section 12 of the Act. The Hon’ble Bench had observed that prior to marriage she was a working woman and there is no explanation provided as to how she is incapable of working now. The Court observed that it is not expected of her to idle and ask for the entire maintenance amount from the husband. The court further added that she is legally bound to make some efforts for her livelihood and only supportive maintenance may be granted from her husband.

When the D.V. Act was enforced i.e. before 2005, the victim used to approach the Court under Section 498-A of IPC. The D.V. Act came into existence with an objective of providing protection to the women from domestic violence. The intention of the legislature was observed by the Hon’ble Apex Court in the case of “Indra Sarma v. V.K.V. Sarma” [15], wherein the Court stated that the D.V. Act came into existence for providing a remedy under civil law for the women subjected to domestic violence, and to further prevent such acts of violence in the society. The objective provided in the act states that “An Act to provide for more effective protection of the rights of women guaranteed under the Constitution who are victims of violence of any kind occurring within the family and for matters connected therewith or incidental thereto.” The Hon’ble High Court of Madras in a case titled “Vandhana v. T. Srikanth”[16], observed that the purpose of enforcement of the act was to implement the Recommendation No. 12 of the United Nations Committee on Convention on Elimination of All Forms of Discrimination Against Women (CEDAW), 1989. The said convention was ratified by India in June, 1993.

Furthermore, the Bombay High Court in the case tiled “Ishpal Singh Kahai v. Ramanjeet Kahai “[17] observed that the D.V. Act provides statutory protection to the victims of domestic violence who do not have any proprietary rights. It further protects from recurrence of any such acts of violence. The Hon’ble Court further observed that the aim of the act is to ensure security and protection without considering her proprietary rights.

The Hon’ble Supreme Court in Case of “Hiral P. Harsara v. Kusum Narottamdas Harora “[18], made the position of law clear with respect to the interpretation of word “Respondent” under Section 2(q) of the act. The Court stated that the word respondent means person who is a perpetrator of violence and it cannot be restricted only to “adult male person” thus the remedies under the act can also be claimed against a female member and also non-adults.

CITATIONS

Rajan v. The State of Madhya Pradesh, Misc. Criminal Case No. 35596 of 2018.
Arnesh Kumar v. State of Bihar, (2014) 8 SCC 273.
Preeti Gupta v. State of Jharkhand, (2010) 7 SCC 667.
Geeta Mehrotra v. State of UP, (2012) 10 SCC 741.
Akhilesh v. State of UP, 2024 AHC 54046.
SG v. State of Bihar, Cr.Rev. No. 923 of 2018.
Rameshbhai Dhanjibhai Solanki v. State of Gujarat, R/Crl, Misc, Application No. 3259 of 201.
Roopa Soni v. Kamalnarayan Soni, 2023 SCC Online SC 1127.
Vishwanath Agrawal v. Sarla Vishwanath Agrawal (2012) 7 SCC 288.
Vallabhi v. R.Rajasabahi C.M.A. No. 3249 of 2017.
K.Srinivas Rao v. D.A. Deepa AIR 2013 SC 2176.
Narendra v. K Meena AIR 2016 SC 4599.
D.Velusamy v. D. Patchaiammal, (2010) 10 SCC 469.
XYZ v. Gurumanjunatha, Criminal Revision No. 1324 of 2015.
Indra Sarma v. V.K.V. Sarma, (2013) 15 SCC 755.
Vandhana v. T. Srikanth, 2007 SCC Online Mad 553.
Ishpal Singh Kahai v. Ramanjeet Kahai, 2011 SCC OnLine Bom 412.
Hiral P. Harsara v. Kusum Narottamdas Harora, (2016) 10 SCC 165.