Saturday, 11 June 2016

Whether bringing second wife amounts to cruelty on first wife within meaning of S 498A of IPC?

There is one more allegation which, according to prosecution,
is quite serious and which, if proved, would require consideration from
this Court for evaluating its impact on the conduct of the complainant.
This allegation is about bringing a second wife to his house by respondent
No.1.   I must say it here that it is not every type of misconduct that has
been made punishable under section 498­A of I.P.C.   Cruelty has been
defined in section 498­A to mean any willful conduct 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   physical   or   mental   health   of   the   woman   or
harassment of the woman made with a view to coercing her or any person
related to her to meet any unlawful demand for any property or valuable
security.  So, it is clear that only those acts committed willfully and which
are in the nature of degrading treatment which qualify to be termed as
cruelty in law.   In other words, cruelty is a conduct designed to produce
definite result in relation to physical or mental condition of a woman.   In
order that the conduct is called willful, it must have been such as could be
said to be indulged in by the accused with an intention to cause or with
the   knowledge   that   it   is   likely   to   cause   degrading   or   humiliating   or
injurious effect on the mind or conduct of the woman.  It involves acts the
result of which causes hurt and often­times agony to the opposite party, be
it mental or physical, which in turn has further damaging consequences,
the most serious of which is an ultimate suicide, as held in the case of

Madhuri Mukund Chitnis  v.  Mukund Martand Chitnis, 1992 CRI.L.J.
111.    Thus, the condemned act called cruelty must be accompanied by
mens rea.   Having said so, it has to be seen whether the allegation that
the accused No.1 had brought one stranger lady to his house at Pune and
announced not only to the complainant but also to her father and uncle
that the stranger was his second wife was reasonably established or not.
Even if this allegation is proved, the matter would not end there, as it
cannot be presumed in every case that such conduct of husband would
create such an adverse  impact on the mind of the wife as is sufficient to
drive her to commit suicide or cause grave injury to herself and hence a
willful   conduct.     There   are   instances   where   a   second   wife   has   been
accepted by first wife willingly or unwillingly but surely without losing
balance of mind by causing any injury to herself.   So all depends on the
facts and circumstances of each case.    The evidence as regards the said
allegation,   therefore,   needs   to  be  assessed   in   the   light   of   the   law   so
discussed.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.  571  OF 2001
State of Maharashtra. ... Appellant.
V/s.
 Sanjiv Bhimrao Kamble.

CORAM : S.B. SHUKRE, J.
DATED  : 28th October 2015.
Citation: 2016 ALLMR(CRI)2058

By   this   appeal   the   State   has   challenged   the   legality   and
correctness of the judgment and order dated 24th  April 2001 passed in
R.C.C.No.23/1995 by Judicial Magistrate, First Class, Pimpri whereby the
respondents   have   been   acquitted   of   the   offence   of   cruelty   punishable
under section 498­A read with section 34 of Indian Penal Code (I.P.C.)
2. The   respondent   No.1   is   the   husband   of   the   complainantSadhana
Sanjiv Kambale.     Respondent Nos.2 and 4 are the sisters of
respondent   No.1   and   respondent   Nos.3   and   5   are   respectfully   the
husbands of respondent Nos.2 and 4.   By a complaint lodged on 11th July
1994, the complainant­ Sadhana alleged that respondent No.1 being her
husband and respondent Nos.2 to 5 being her in­laws subjected her to ill
treatment and cruelty on account of her failure to bring some amount of
money.   Investigation was made and when it was found that there was
sufficient evidence available to proceed against the respondents, the Police
filed  a charge­sheet  against  all  the  respondents.      The  charge  for   an
offence punishable under section 498­A read with section 34 of I.P.C. was
framed against the respondents to which they pleaded not guilty and
claimed to be tried.   On merits of the case, learned Magistrate found that
the evidence adduced by the prosecution was insufficient to prove the

charge   of   cruelty   against   the   respondents   and,   accordingly,   by   his
judgment   and   order   dated     24th  April   2001   the   learned   Magistrate
acquitted all the respondents of the charge of cruelty.   Being not satisfied
with the same, the State is before this Court in the present appeal.
3. I   have   heard   learned   A.P.P.   for   the   appellant­   State   and
Mr.Desai, learned counsel for the respondents.  Respondent No.1­ accused
No.1   is   also   personally   present   in   the   Court   in   compliance   with   the
directions issued by this Court.   I have gone through the record of the
case.
4. According to learned A.P.P., this is a fit case for interference
with the impugned judgment and order as there is improper appreciation
of   evidence,   which   submission   is   opposed   by   learned   counsel   for   the
respondents.
5. On   going   through   the   record   of   the   case   including   the
judgment and order impugned in the present appeal, I find that there is no
merit in the argument of learned A.P.P. as the inference drawn by the
learned   Magistrate   in   the   present   case   is   based   upon   appreciation   of
evidence available on record and is the result of  a view which could be
said to be plausible, and not impossible.
6. The record shows that there are four prosecution witnesses,
who are material, and careful scrutiny   of evidence of these witnesses
would show that they have not come out with any consistent stand as

regards   the   ill­treatment   and   cruelty   allegedly   meted   out   by   the
respondents to the complainant.   While the complainant­ Sadhana (PW­1)
says that she was harassed by the respondents and was compelled to
withdraw   an   amount   of   Rs.13,000/­   from   Bank   of   Karad,   the   other
witnesses i.e. Vishnu Waghmare (PW2)­ father of the complainant and
Suhas   Waghmare   (PW4)­   brother   of   the   complainant   state   that   the
complainant withdrew  an amount of Rs.15,000/­ under compulsion not
from any bank but from the society.  Madhukar  Waghmare (PW3)­ uncle
of the complainant also states the same thing   as said by father and
brother of the complainant.   No explanation is forthcoming   from the
prosecution side as regards inconsistency between the evidence of PW1
on one hand and evidence  of the other witnesses i.e. PW2, PW3, PW4 on
the other in respect of alleged compulsion brought upon the complainant
for withdrawing the amount either from the bank or from the society.
Even otherwise, none of the witnesses have stated before the Court that
earlier there was any demand of money made by the accused from the
complainant and as it was not fulfilled by her she was harassed so much
that,   ultimately,   out   of   desperation   or   to   save   herself   from   further
harassment   that   she   decided   to   withdraw   sum   of   Rs.13,000/­   or
Rs.15,000/­ from the bank or the society.     A person can be said to be
compelled to do something only when situation of a desperation by some
overt acts is created by the accused persons.   In the instant case, no such
evidence regarding some acts of commission or omission, which ultimately
led to bring so much pressure upon the complainant that it resulted into a
feeling on her part that there was no other option left for her than to
withdraw the money from the bank or the society, has been adduced by

the prosecution.   Therefore, it could not be said that the prosecution has
proved its case of handing out of cruelty to the complainant on the count
of demand of money as contemplated under section 498­A of I.P.C.
7. There is one more allegation which, according to prosecution,
is quite serious and which, if proved, would require consideration from
this Court for evaluating its impact on the conduct of the complainant.
This allegation is about bringing a second wife to his house by respondent
No.1.   I must say it here that it is not every type of misconduct that has
been made punishable under section 498­A of I.P.C.   Cruelty has been
defined in section 498­A to mean any willful conduct 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   physical   or   mental   health   of   the   woman   or
harassment of the woman made with a view to coercing her or any person
related to her to meet any unlawful demand for any property or valuable
security.  So, it is clear that only those acts committed willfully and which
are in the nature of degrading treatment which qualify to be termed as
cruelty in law.   In other words, cruelty is a conduct designed to produce
definite result in relation to physical or mental condition of a woman.   In
order that the conduct is called willful, it must have been such as could be
said to be indulged in by the accused with an intention to cause or with
the   knowledge   that   it   is   likely   to   cause   degrading   or   humiliating   or
injurious effect on the mind or conduct of the woman.  It involves acts the
result of which causes hurt and often­times agony to the opposite party, be
it mental or physical, which in turn has further damaging consequences,
the most serious of which is an ultimate suicide, as held in the case of

Madhuri Mukund Chitnis  v.  Mukund Martand Chitnis, 1992 CRI.L.J.
111.    Thus, the condemned act called cruelty must be accompanied by
mens rea.   Having said so, it has to be seen whether the allegation that
the accused No.1 had brought one stranger lady to his house at Pune and
announced not only to the complainant but also to her father and uncle
that the stranger was his second wife was reasonably established or not.
Even if this allegation is proved, the matter would not end there, as it
cannot be presumed in every case that such conduct of husband would
create such an adverse  impact on the mind of the wife as is sufficient to
drive her to commit suicide or cause grave injury to herself and hence a
willful   conduct.     There   are   instances   where   a   second   wife   has   been
accepted by first wife willingly or unwillingly but surely without losing
balance of mind by causing any injury to herself.   So all depends on the
facts and circumstances of each case.    The evidence as regards the said
allegation,   therefore,   needs   to  be  assessed   in   the   light   of   the   law   so
discussed.
8. Upon considering the evidence of PW1­ Sadhana as well as
her father Vishnu (PW2) and uncle Madhukar (PW3), I am of the view
that the allegation of second wife has not been proved beyond reasonable
doubt by the prosecution.  If the allegation has not been proved, hunger
for   knowing   what   the   allegation   did   to   mental   equilibrium   of   the
complainant  would not be ignited.   Reasons for such conclusion could be
seen in foregoing paragraphs.   

9. According to PW1­ Sadhana, on 26th June 1994, after making
an   announcement   to   her   that   the   stranger   was   his   second   wife   the
respondent No.1 had told her to leave his house or he would finish her.
In her evidence, PW1­ Sadhana does not say anything about command of
respondent No.1 regarding leaving of the house.   PW2­ Vishnu says that
respondent No.1 had asked him and his brother Madhukar (PW3) to take
back along with them PW1­ Sadhana but without taking her, both of them
went back to their respective places.   PW3­ Madhukar also says that even
though respondent No.1 had asked him to take along with him PW1­
Sadhana, he returned from the house of respondent No.1 without taking
Sadhana with him.    In the FIR vide Exh.44, however, the complainant
PW1­ Sadhana has alleged that on 26th June 1994 she was forcibly driven
out of house by the respondents and at that time all of them had hurled
abuses at her.   This would mean that there is a material variance between
the version of the complainant, her father and her uncle before the Court
and version of the complainant before the Police when she lodged the
complaint at the Police Station on 11th  July 1994.   No explanation has
been provided in the prosecution case to enable the Court to ascertain as
to which of them is correct.   Therefore, a serious doubt has arisen about
the trustworthiness of these important witnesses as regards their evidence
on the events of 26th  June 1994 and some corroboration from other or
independent witnesses was necessary so as to clear the cloud of doubt on
their reliability.   However, there is no corroboration provided by any other
witness in this regard.   

10. The   doubt   about   the   trustworthiness   of   the   prosecution
witnesses has been further deepened by the fact that there was  inordinate
delay in lodging of FIR.   From the evidence of the complainant as well as
her relatives and what has been alleged in the FIR, it appears that the
incident of 26th June 1994 proved to be a proverbial final nail in the coffin
marking   a   virtual   snapping   of   matrimonial   relations   between   the
complainant­ Sadhana  and her  husband­  Sanjiv  Kamble.       After  this
incident, there was nothing which could have been done or even avoided
to   be   done   by   the   complainant   so   as   to   keep     her   marriage   with
respondent No.1 alive.   So, it would have been her natural reaction, if she
had immediately lodged a police complaint against the respondents.   But,
it is seen that even an attempt was not made to file any FIR against the
husband or in­laws or all of them   in the evening of 26th  June 1994 or
within a reasonable period of time thereafter.   There was a delay of about
15 days in lodging of the FIR.    The delay has not been explained at all.
The   circumstances   brought   on   record   by   the   prosecution   also   do   not
explain the delay.    In the background of what has been discussed above,
especially the evidentiary   worth of material prosecution witnesses and
absence of any independent or other corroboration, the delay in lodging of
FIR has become fatal to the prosecution case.   It appears that the entire
story made up in the FIR was product of an afterthought on the part of the
complainant and her father as well as uncle who were admittedly in the
profession of advocacy at the relevant time.
11. With such evidence available on record, as stated earlier, the
view taken by the learned Magistrate cannot be said to be an impossible

view.   I agree with him when he finds that the prosecution has failed to
prove beyond reasonable doubt the charge framed against the respondents
under   section   498­A   of   I.P.C.       There   is   no   scope   for   making   any
interference in the impugned judgment and order.   The appeal deserves to
be dismissed.
12. The appeal stands dismissed.
(S.B. SHUKRE, J.)

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