Whether offence U/S 498A of IPC is made out even if there is no dowry demand?

 In Gurnaib Singh v. State of Punjab MANU/SC/0576/2013 : (2013) 7 SCC 108, while dwelling upon the concept of 'cruelty' enshrined Under Section 498-A the Court has opined thus:

Clause (a) of the Explanation to the aforesaid provision defines "cruelty" to mean "any wilful 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. Clause (a) can take in its ambit mental cruelty.

13. The aforesaid analysis of the provision clearly spells how coercive harassment can have the attributes of cruelty that would meet the criterion as conceived of Under Section 498-A of the Indian Penal Code. Thus, the emphasis is on any wilful conduct which is of such a nature that is likely to drive the woman to commit suicide. The mental cruelty which is engraved in the first limb of Section 498-A of the Indian Penal Code has nothing to do with the demand of dowry. It is associated with mental cruelty that can drive a woman to commit suicide and dependent upon the conduct of the person concerned.

IN THE SUPREME COURT OF INDIA

Criminal Appeal Nos. 1138-1139 of 2016 (Arising out of S.L.P. (Crl.) Nos. 5928-5929 of 2016)

Decided On: 22.11.2016

K.V. Prakash Babu Vs. State of Karnataka

Hon'ble Judges/Coram:

Dipak Misra and Amitava Roy, JJ.

Citation:2017(11) SCC176.

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Whether cruelty as per S 498A of IPC can be inferred if wife commits suicide?

Considering   evidence   of   material   witnesses   namely   PW­1
Ashish and PW­4 Dr. Yadavrao on the point of cruelty provided by accused
to  deceased  Vandana  and on  demand of  dowry, we  do not  find their
evidence to be sufficient to attract provisions of Sections 498­A and 304­B
of the Indian Penal Code.  As in the evidence of neither of these witnesses,

there are specific allegations of cruelty as required under the law to be
established by the prosecution.  The existence of cruelty cannot be proved
merely because suicide has been committed or deceased died of unnatural
death.     Undoubtedly   to   a   large   extent,   the   concept   of   cruelty   will   be
subjective, but no claim of cruelty can be made  within objective basis.
Thus, merely because victim has taken a drastic step of ending her life, it
cannot be presumed that the treatment that was being given to her was
cruel, so as to attract punishment provided for, in Section 498­A of the
Indian Penal Code.   Explanation to Section 498­A of Indian Penal Code
makes it clear that cruelty means “any willful conduct, which is of such a
nature as is likely to drive a woman to commit suicide or to cause grave
injury or danger to life, limb or health (whether mental or physical) of the
woman”.  The words “willful conduct” and “likely to” used in explanation
clause (a) are significant.   The words “likely to” used in the said clause
show that clause (a) of explanation to Section 498­A of the Indian Penal
Code requires a willful conduct to be of such a nature as would likely to
drive a woman to commit suicide or to cause grave injury or danger to life,
limb or health.   The extent of cruel treatment needs to be objectively
assessed in order to see whether a reasonable or average person would
likely  to be driven  to  commit suicide  or cause grave  injury  to her on
account of treatment.  
Had
the allegations of demand of dowry and harassment to Vandana were
established thereby making an offence under Section 498­A of the Indian
Penal Code, the things would have been different.  However, in the absence
of such evidence and since we do not find dowry demand and harassment
to Vandana to be established, provisions of Section 304­B of Indian Penal
Code cannot put into play so as to attract presumption as to dowry death.
It is necessary to show that soon before the death, deceased had been
subjected by such person to cruelty or harassment for or in connection
with, any demand for dowry.  When this essential ingredient has not been
established in the present case, the question of drawing any presumption
by invoking aforesaid provisions does not arise at all. 
Even otherwise mere evidence of cruelty and harassment is not sufficient to
bring in application of Section 304­B of the Indian Penal Code.  It has to be
shown in addition that such cruelty or harassment was for or in connection
with the demand for dowry.   Since the prosecution failed to prove that
aspect, the conviction as recorded cannot be maintained.  

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
CRIMINAL APPEAL NO.08 OF 2005
 Dnyaneshwar @ Nana Kashinath Jumade V State of Maharashtra,

  CORAM  : B.P. DHARMADHIKARI AND
   P.N. DESHMUKH, JJ.

Dated :     AUGUST 19th, 2015.
Citation:2016 ALLMR(CRI)4783

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How to appreciate evidence of relatives of wife recorded after her death for offence U/S 498A of IPC?

While appreciating the evidence of Kailash Narayan

and Pankaj, it must be kept in mind that such evidence by the

close relatives of the victim, needs to be examined with great

caution, as it would be easy for them to make such accusation

after the death of the victim.  The claim that the victim used to tell them about the harassment, ill­treatment and cruelty meted out to her, after the death of the victim, when the victim would not be available for challenging the same or confronting her with such evidence,   is   quite   easy   to   be   made.     While   it   cannot   even   be suggested that, the witnesses being closely related to the deceased their evidence ought not to be relied upon, the possible dangers in such evidence must be kept in mind.   As observed earlier, such evidence can easily be concocted on the death and the tragic end of that the victim.  Moreover, in such tragic cases, the near ones of the victim, genuinely start believing that her husband or the inlaws are the cause of the death, and therefore, there would be a tendency to modify the facts suitably to see that some how the husband and the in­laws are booked.  In the instant case, applying

the well settled parameters for judging the reliability of evidence,

it   is   impossible   to   come   to   a   conclusion   that   the   evidence   of Kailash Narayan and / or Pankaj can be safely accepted.  There are very obvious and material improvements in their evidence, but, what is further important to note is that, the allegations of cruelty, as reflected from their evidence, are vague and general.  It must be understood that cruelty contemplated by Section 498A of theIPC is different from the concept of cruelty that is recognized inmatrimonial matters.  The explanation appended to Section 498A

of IPC is important in this context.  It makes it clear that cruelty

means '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.'  The words 'wilful conduct' and 'likely' are significant and indicate that the wilful conduct must be of such a nature, as would be likely to drive a woman to commit suicide or to cause grave injury to her life, limb or health.  

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.588 OF 2010

KAMLESH SATYAPRAKASH AGARWAL V/s. THE STATE OF MAHARASHTRA  

CORAM : ABHAY M. THIPSAY, J.

DATE : 16th JUNE 2015.

Citation:2016 ALLMR(CRI)4187 Bom

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Whether divorce can be refused to a party on ground that there was no deliberate or wilful ill- treatment to him or her?

It is settled law that mens rea has no role to play to constitute cruelty as per number of decisions of Hon'ble Apex Court including Sovarani vs. Madhukar Reddy reported in AIR 1980 SC 121 as well as Suman Kapur vs Sudhir Kapur reported in (2009)1 SCC 422. The husband is under moral and legal obligation to establish the detail particulars of acts and behaviour of wife manifest to constitute the ingredients of matrimonial cruelty. It has been held therein that "the absence of intention should not make any difference in the case, if by ordinary sense in human affairs, the act complained of could otherwise be regarded is cruelty. Mens rea is not a necessary element in cruelty. The relief to the party cannot be denied on the ground that there has not been any deliberate or wilful ill- treatment."

Calcutta High Court (Appellete Side)

Smt. Bipasha Bhowal vs Sri Biplab Bhowal on 15 May, 2014

Present : The Hon'ble Justice Tapan Kumar Dutt
                                       and
          The Hon'ble Justice Dr.Mrinal Kanti 

           Chaudhuri


                         F.A. No. 249 of 2013
                             (CAN 4649 of 2012)
                                     with
                          F.A. No. 248 of 2013

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Whether prosecution has to prove wilful conduct and mensrea for proving offence U/S 498A of IPC?

Smt. Sirpurkar, the learned counsel for the the appellants/accused further submitted that considering the facts and circumstances merely alleging that she has brought less amount of dowry as also she is not cooking properly will not amount to cruelty and thereby there seems no mens-rea of the appellants\accused that deceased Sunita should commit suicide.

The prosecution has to prove wilful conduct and mens-rea which is a necessary ingredient. A reliance has been placed on a case of Veerulu v. State of Andhra Pradesh, 1988 (3) Crimes 549 (Andhra Pradesh High Court) in which at para No. 12, it is observed that;

"Adverting to the standard of proof for 'cruelty' in civil and criminal law, it is to be noted that 'cruelty' is one of the grounds for grant of relief of 'judicial separation' or 'divorce' under the Hindu Marriage Act. The word cruelty as such is not defined in the Hindu Marriage Act. However, Courts have interpreted it from time to time as of two categories, viz. physical cruelty and mental cruelty. In Ruselve. Rusel cruelty was defined as the conduct of such a character to have caused danger to life, limb or health, body or mental, or to have given rise to a reasonable apprehension of such danger. Therefore, the conduct need not practically result in the danger and it is enough if it gives rise to a reasonable apprehension of such a danger. Human relations are so diverse that it is rather difficult to lay down with finality the classes of acts that constitute cruelty. In one case commission of a certain act may result in cruelty while in another non-commission of that act may cause cruelty. Again cruelty may be direct or indirect. At one time it may be intended with an objective while on another occasion it may be quite unintended and with no objective. Thus, as has been the majority view in Gollins. v. Gollins intention on the part of one spouse to injure the other is not a necessary element of cruelty. Where two spouses are of normal physical and mental health and the conduct of the respondent spouse so considered is so bad that the other should not be called on to endure it, cruelty is established; it does not then matter what the respondent's state of mind was, for it is immaterial whether the respondent's conduct was aimed at the other spouse or due to unwarranted indifference attributable, perhaps to selfishness or laziness. Lored Pearce in Gollins. v. Gollins supra said :

In the light of the vital fact the Court has then to decide whether the sum total of the reprehensible conduct was cruel. That depends on whether the cumulative conduct was sufficiently weighty to say that from a reasonable person's point of view, after a consideration of any excuses which the respondent might have in the circumstances, the conduct is such that the petitioner ought not to be called on to endure it."

Referring various cases in para No. 15 it is further observed that;

"On an analysis of the cases noted supra, it can be called out that (i) the standard of proof of cruelty are higher in decree in criminal law than in civil law under the matrimonial causes, (ii) the intention or mens are on the part of one spouse to injure the other is not a necessary element of cruelty in civil law for matrimonial causes while it is an essential element in criminal law, (iii) it is enough if cruelty is proved by preponderance of probabilities in civil law while in criminal trials the conduct of cruelty has to be proved beyond all reasonable doubt, (iv) it is immaterial in civil law whether the respondent's conduct was aimed at the other spouse or due unwarranted indifference attributable, perhaps to selfishness or laziness, while it is very much material in criminal proceedings, and (v) for the relief of matrimonial causes in civil law the conduct of the spouse need not necessarily result in danger of life, limb or health, but a reasonable apprehension of such a danager is enough, whereas Section 498A, IPC contemplates such a conduct besides being wilful to result in the likelihood of driving the woman to commit suicide or to cause grave injury or danger to life, limb or health."

The term 'wiflful misconduct' is discussed in para 25 which is as follows :

"The term wilful misconduct was the subject matter of interpretation in Lewis v. Great Western Rly. Co. It is held :

wilful misconduct means misconduct to which the will is a party something opposed to accident or negligence ..... wilful misconduct must be that the person guilty of it should know that mischief will result from it.

Thus, the word, 'wiflful' in the term 'wilful conduct' excludes a happening due to accident or inadvertance while taking with in its sold an act which is deliberate or intentional. Accordingly to constitute 'wilful conduct' it should necessarily involve in itself an intention to do the act, a deliberate attitude or that the mind of the person doing the act should go along with that act."

Bombay High Court

Punjab Sakharam Raut And Another vs The State Of Maharashtra on 15 March, 1995

Equivalent citations: 1995 CriLJ 4021

Bench: B Wahane

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