Manju Ram Kalita vs State Of Assam

MANJU RAM KALITA .... Appellant

Versus

STATE OF ASSAM .... Respondent

JUDGMENT

Dr. B.S. Chauhan, J.

1. This Appeal has been preferred against the Judgment and Order dated 21st

December, 2001 of the High Court of Gauhati in Criminal Revision (P) No. 578 of

2000 by which the High Court concurred with the finding of facts, recorded by the

Trial Court dated 22.12.1999 passed by the Addl. Chief Judicial Magistrate,

Kamrup, Guwahati in Case No. G.R.1957/1997; and of the Appellate Court, the

Sessions Judge, Kamrup dated 13.10.2000 passed in Criminal Appeal No.3 of 2000

that the appellant was guilty of committing the offences under Sections 494 and

498A of the Indian Penal Code (in short "I.P.C") and sentenced him to undergo

rigorous imprisonment for 2 years u/S 498A and for 3 years u/S 494 I.P.C.

However, both the sentences were directed to run concurrently. 2

2. The facts and circumstances giving rise to this appeal are that the

appellant, a Government servant, got married with Smt. Minati Das (Kalita), the

complainant on 5.2.1992 as per Hindu rites. Smt. Minati Das (Kalita) gave birth to

a male child on 10.3.1993. However, the relationship between the husband and

wife were not cordial as it was alleged by the wife that she was being tortured

mentally and physically by the Appellant. She left the matrimonial home and

started living with her father and was residing therein since 1993. In 1997, she

came to know that the appellant got married with one Ranju Sarma on 2.2.1997 at

Tukeswari Temple. Thus, she filed an FIR against the appellant.

3. The appellant was charged under Sections 498A/494 IPC by CJM,

Guwahati. The appellant defended himself before the Trial Court denying all the

charges. However, considering the evidence on record, the Trial Court found both

the charges proved against the appellant beyond reasonable doubt and after

convicting him, for the said offences, awarded the sentences as mentioned here-in-

above, vide judgment and order dated 22.12.1999. (Annexure P-12)

4. Being aggrieved, the appellant preferred Appeal No.3 of 2000 which was

dismissed by the Appellate Court vide Judgment and Order dated 13.10.2000

(Annexure P-13).

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5. The appellant further approached Gauhati High Court by filing Criminal

Revision (P) No. 578 of 2000 which has been dismissed by the impugned

Judgment and Order dated 21st December, 2001. Hence, this Appeal.

6. Shri S.K. Bhattacharya, learned counsel appearing for the appellant has

raised all the contentions which the appellant has raised before the courts below,

inter alia, that there was no valid marriage with Smt. Ranju Sarma as the marriage

had taken place before a Hindu Deity and that there was no case of mental or

physical torture to bring home the charges under Section 498A IPC. Thus, the

appeal deserved to be allowed.

7. On the contrary, Mr. Riku Sharma, learned counsel appearing on behalf of

the respondent State submitted that there are concurrent finding of facts by three

courts below so far as the issue of marriage of the appellant with Smt. Ranju Sarma

is concerned. This Court should not interfere with the findings so recorded, being

the fourth court entertaining this matter. So far as the attraction of the provisions of

Section 498 A is concerned, it was submitted that the appellant subjected the

complainant (legally wedded wife) to physical and mental torture and agony; thus

the charges have rightly been found proved against him by all the three courts. 4 Therefore, there is no occasion for this Court to interfere in the matter. The

appeal is liable to be dismissed.

8. We have considered the rival submissions made by learned counsel for the

parties and perused the record.

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9. So far as issue no. 1 is concerned i.e. as to whether the appellant

got married with Smt. Ranju Sarma, is a pure question of fact. All the three courts

below have given concurrent finding regarding the factum of marriage and its

validity. It has been held to be a valid marriage.

10. It is settled legal proposition that if the courts below have recorded the

finding of fact, the question of re-appreciation of evidence by the third court does

not arise unless it is found to be totally perverse. The higher court does not sit as a

regular court of appeal. It's function is to ensure that law is being properly

administered. Such a court cannot embark upon fruitless task of determining the

issues by re-appreciating the evidence. This Court would not ordinarily interfere

with the concurrent findings on pure questions of fact and review the evidence

again unless there are exceptional circumstances justifying the departure from the

normal practice. The position may undoubtedly be different if the inference is one

of law from the facts admitted and proved or where the finding of fact is materially

affected by violation of any rule of law or procedure. (Vide Firm Sriniwas Ram

Kumar Vs. Mahabir Prasad & Ors.; AIR 1951 SC 177; M/s. Tulsi Das Khimji Vs.

The Workmen, AIR 1963 SC 1007; and Pentakota Satyanarayana & Ors. Vs.

Pentakota Seetharatnam & Ors., AIR 2005 SC 4362).

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11. Where the court below considered the material facts and did not

take into consideration any inadmissible evidence etc., the interference is not

required by court on third instance. (vide Madhavan Nair vs. Bhaskar Pillai, (2005)

10 SCC 553.)

12. Thus, it is evident from the above that this Court being the fourth Court

should not interfere with the exercise of discretion by the courts below as the said

courts have exercised their discretion in good faith giving due weight to relevant

material and without being swayed by any irrelevant material. Even if two views

are possible on the question of fact, we, being the fourth court, should not interfere

even though we may exercise discretion differently had the case come before us

initially.

13. In view of the above, we are not inclined to interfere with the finding of fact

so far as the issue of bigamy is concerned nor the quantum of punishment on this

count required to be interfered with.

14. Issue no. 2 relates to the applicability of 498A I.P.C. As it has been alleged

by the complainant that she had been given physical and mental torture by the

appellant and it was not possible for her to stay with the appellant after 1993

though she was having seven months' pregnancy at that time. She gave birth to a 7 male child in the hospital and the appellant did not even come to see the

child. The question would arise as to whether in the facts and circumstances where

the complainant had left the matrimonial home and started living with her father in

1993, could a case be registered against the appellant under Section 498A I.P.C. in

1997?

15. The provisions of Section 498A IPC read 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 purposes of this section `cruelty' means -

(a) any welful 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;

(b) harassment of the woman where such harassment is with a view to coercing her to 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."

Cruelty has been defined by the explanation added to the Section itself. The

basic ingredients of Section 498A I.P.C. are cruelty and harassment. In the instant

case, as the allegation of demand of dowry is not there, we are not concerned with

clause (b) of the explanation. The elements of cruelty so far as clause (a) is

concerned, have been classified as follows :

(i) any `wilful' conduct which is of such a nature as is likely to drive the woman to commit suicide; or

(ii) any `wilful' conduct which is likely to cause grave injury to the woman; or 8

(iii) any `wilful' act which is likely to cause danger to life, limb or health, whether physical or mental of the woman.

16. In S. Hanumantha Rao v. S. Ramani, AIR 1999 SC 1318, this Court

considered the meaning of cruelty in the context of the provisions under Section13

of the Hindu Marriage Act, 1955 and observed that :

"mental cruelty broadly means, when either party causes mental pain, agony or suffering of such a magnitude that it severs the bond between the wife and husband and as a result of which it becomes impossible for the party who has suffered to live with the other party. In other words, the party who has committed wrong is not expected to live with the other party."

17. In V. Bhagat v. Mrs. D. Bhagat, AIR 1994 SC 710, this court, while dealing

with the issue of cruelty in the context of Section 13 of the Hindu Marriage Act,

observed as under :

"17. .......It is not necessary to prove that the mental cruelty is such as to cause injury to the health of the petitioner. While arriving at such conclusion, regard must be had to the social status, educational level of the parties, the society they move in, the possibility or otherwise of the parties ever living together in case they are already living apart and all other relevant facts and circumstances which it is neither possible nor desirable to set out exhaustively. What is cruelty in one case may not amount to cruelty in another case. It is a matter to be determined in each case having regard to the facts and circumstances of that case. If it is a case of accusations and allegations, regard must also be had to the context in which they were made........... The context and the set up in which the word `cruelty' has been used in the section seems to us, that intention is not necessary element in cruelty. That word has to be understood in the ordinary sense of the term in matrimonial affairs. If the intention to harm, harass or hurt could be inferred by the nature of the conduct or brutal act complained of, cruelty could be easily established. But 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 as cruelty."

9 18. In Mohd. Hoshan v. State of A.P.; (2002) 7 SCC 414, this Court while

dealing with the similar issue held that mental or physical torture should be

"continuously" practiced by the accused on the wife. The Court further observed

as under :

"Whether one spouse has been guilty of cruelty to the other is essentially a question of fact. The impart of complaints, accusations or taunts on a person amounting to cruelty depends on various factors like the sensitivity of the individual victim concerned, the social background, the environment, education etc. Further, mental cruelty varies from person to person depending on the intensity of sensitivity and the degree of courage or endurance to withstand such mental cruelty. In other words, each case has to be decided on its own facts to decide whether the mental cruelty was established or not."

19. In Smt. Raj Rani v. State (Delhi Administration); AIR 2000 SC 3559, this

Court held that while considering the case of cruelty in the context to the

provisions of Section 498A I.P.C., the court must examine that

allegations/accusations must be of a very grave nature and should be proved

beyond reasonable doubt.

20. In Sushil Kumar Sharma vs. Union of India, AIR 2005 SC 3100, this

Court explained the distinction of cruelty as provided under Section 306 and 498A

IPC observing that under Section 498A cruelty committed by the husband or his

relation drive woman to commit suicide etc. while under Section 306 IPC, suicide

is abated and intended. Therefore, there is a basic difference of the intention in

application of the said provisions.

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21. In Girdhar Shankar Tawade v. State of Maharashtra, AIR 2002 SC

2078; this Court held that "cruelty" has to be understood having a specific statutory

meaning provided in Section 498A I.P.C. and there should be a case of

continuous state of affairs of torture by one to another.

22. "Cruelty" for the purpose of Section 498-A I.P.C. is to be established in the

context of S. 498-A IPC as it may be a different from other statutory provisions. It

is to be determined/inferedby considering the conduct of the man, weighing the

gravity or seriousness of his acts and to find out as to whether it is likely to drive

the woman to commit suicide etc. It is to be established that the woman has been

subjected to cruelty continuously/persistently or at least in close proximity of time

of lodging the complaint. Petty quarrels cannot be termed as `cruelty' to attract the

provisions of Section 498-A IPC. Causing mental torture to the extent that it

becomes unbearable may be termed as cruelty.

23. The instant case required to be examined taking into consideration the

aforesaid settled legal provisions. Undoubtedly, there had been complaint by the

wife of physical and mental torture upto 1993 when she left the matrimonial home

and started living with her father. The complaint of cruelty was lodged by filing an

FIR on 23.5.1997 i.e. after four years of leaving the matrimonial home. More so, 11 the mental or physical torture was not continuous on the part of the appellant

as there is no complaint against him between 1993 to 1997 i.e. leaving the

matrimonial home by the wife and performing the second marriage by the husband.

24. The complainant Smt. Minati Das (Kalita) P.W.3 deposed that she had been

tortured physically and mentally but there was no allegation that she was subjected

to physical or mental torture after the birth of the child in 1993. Similarly, Shri

Lakhi Kt. Das (P.W.1), the father of the complainant has not mentioned any

incident of physical or mental torture after 1993. None of the witnesses examined

in this respect deposed that there was a continuous physical or mental torture and

some untoward incident occurred between the husband and wife after 1993.

25. The Trial Court, after considering the depositions, came to the conclusion

that the appellant being husband of the complainant subjected her to cruelty both

mental and physical. But it further held as under :

"No doubt there is no evidence on the record to show that the accused committed harassment on P.W.3 with a view to force her to commit suicide or to fulfil illegal demands of him. The continuous harassment, both physical and mental by the accused made her life miserable and forced her to live separately from her husband." (Emphasis added)

26. The Appellate Court dealt with the issue as under :

"Her specific evidence is that the cruelty both physical and mental was meted to her by her husband after the marriage and this has been well supported by the evidence of the witnesses as discussed above. Her mental torture had reached to such an extent that she had to leave her matrimonial home along with the baby in the womb and this has been well testified in the evidence on record." (emphasis added) 12

27. The High Court considered the issue and reached the conclusion :

" The offence u/S 498 A IPC is punishable with imprisonment upto three years only and as such the prosecution is barred u/S468, Cr.P.C. In view of the catena of decisions of the Apex Court, the law is well settled that offence of cruelty to wife is a continuing offence. Hence the fact that the wife was not living with the husband since 1993 is immaterial and mental and other cruelty may be committed even after the parties living separately."

The High Court further held that during the subsistence of the marriage, the

appellant contracted second marriage and started living with the another woman

that itself was a cruelty and therefore he was liable for the punishment under

Section 498 A.

28. Thus, from the above, it is evident that the Trial Court itself had been of the

view that there was no evidence of cruelty on the part of the appellant with a view

to drive the complainant to commit suicide. The appellate Forum reached the

conclusion that mental torture was of the magnitude that the complainant had to

leave her matrimonial home during her pregnancy. The Revisional court did not

find that the complainant had been subjected to cruelty continuously.

29. Thus, in our opinion, all the three courts below erred in not considering the

case in correct perspective. The findings so recorded by the Courts below may be 13 relevant for granting the relief in a matrimonial dispute i.e. divorce etc. but

could not bring home the charge under Section 498-A IPC.

30. Thus, in view of the aforesaid, conviction of the appellant under Section

498-A IPC and punishment for the said offence awarded by the courts below are

set aside. However, conviction and sentence under Section 494 IPC are

maintained.

31. Appeal succeeds to the said extent and disposed of accordingly.

.........................................J. (Dr. Mukundakam Sharma)

.........................................J. (Dr. B.S. Chauhan) New Delhi;

29th May, 2009.