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Apex court rules anew on cruelty by husband and relatives

By Rakesh Shukla

The Supreme Court does not just decide individual cases -- it lays down the law of the land. A recent ruling in which the apex court held that kicking a woman and threatening her with divorce do not amount to cruelty could set an unhealthy precedent

A recent Supreme Court judgment regarding acts that constitute “cruelty” by the husband or his relatives, punishable under Section 498 A of the Indian Penal Code (IPC), has led to protests by activists. The law minister has promised to look into the matter and consider changes in the legislation.

The provision making cruelty by the husband or his relatives an offence punishable with three years imprisonment was brought in, in 1983. For several years there have been frequent articulations about “misuse” of the provision and a demand for the removal of this section from the statute books.

The workings of the criminal justice system rest on the assumption of lack of bias and requisite impartiality on the part of those entrusted with the responsibility of its functioning. However judges, police officers, collectors and magistrates all fall prey to the values, biases and prejudices of the society in which they live. The limited impact of legislations like the Dowry Prohibition Act or provisions dealing with matrimonial cruelty, on the prevalence of dowry or occurrence of cruelty (at times even leading to suicide or murder) is beyond dispute. The dowry amount in the market for Indian Administrative Services (IAS) and Indian Police Service (IPS) officers -- the very people entrusted with implementing these laws -- are common knowledge! There have also been instances of complaints with regard to dowry and cruelty against judicial officers entrusted with trials under these laws, by daughters-in-law and wives.

In the recent case of Bhaskar Lal Sharma versus Monica, 2009(10) SCALE 744, the Supreme Court examined the ingredients of “cruelty” to determine which acts would fall within the ambit of the offence of cruelty by the husband or his relatives, under Section 498 A of the IPC.

Vikas and Monica got married on January 16, 2004, in Delhi’s Sanatan Dharm Mandir Hall. The marriage was registered on January 22, 2004, with the Registrar of Marriages. Negotiations for the couple’s marriage took place through a matrimonial agency. The husband Vikas had been married earlier and had obtained a decree of divorce in July 2003 from the civil court in the Congo. Vikas had two children, born on April 23, 1999, and July 8, 2000, respectively, from his first wife. Immediately after the marriage, the couple left India for South Africa where they stayed for around 10 days. Thereafter, they lived in their matrimonial home in the Congo for two months. The relationship between Vikas and Monica was cordial during this period.

Vikas worked in the family import and export business and was managing director of the company. The business was extensive and spread across many countries. The family also had a residential house in Lajpat Nagar, New Delhi.

Monica returned to India on April 5, 2004, and stayed in Lajpat Nagar with her in-laws until May 10, 2004. Thereafter, she re-joined her husband in the Congo. 

Their relationship deteriorated. The couple came back to India on May 21, 2004. Monica allegedly brought all her belongings back with her including clothes and jewellery. 

In an attempt to sort out their relationship, Monica and Vikas consulted a psychiatrist in Delhi who advised them to try and make their marriage work. Vikas left for the Congo on May 27, 2004, hoping that Monica would change her mind with regard to their marriage and return to the Congo. Monica stayed on at Lajpat Nagar till June 14, 2004; then took her belongings, including her jewellery, and went to her parents’ house. The allegations of mistreatment and humiliation by her in-laws pertain to the period of her stay in Lajpat Nagar. 

On September 9, 2004, Monica filed a complaint of cruelty and criminal breach of trust under Sections 498 A and 406 of the IPC, respectively, against her husband Vikas and her mother-in-law and father-in-law. She also moved an application claiming maintenance of Rs 2 lakh per month, and interim maintenance of the same amount. The magistrate examined Monica, recorded her evidence, and issued a summons on March 21, 2005. By order dated May 10, 2005, the magistrate granted Monica interim maintenance of Rs 5,000 per month. The magistrate also issued non-bailable warrants, dated June 29, 2005, against Vikas and his parents. Monica subsequently went to the high court, which fixed maintenance at Rs 50,000 per month. 

Vikas and his parents approached the Delhi High Court for a quashing of the order directing the issuance of non-bailable warrants against them. The high court, by order dated August 8, 2005, stayed the issuance of non-bailable warrants with an undertaking that Vikas and his parents would appear before the magistrate. The husband and in-laws also approached the high court for a quashing of the order summoning them for trial under Sections 498 A and 406 of the IPC, for cruelty and criminal breach of trust respectively. Vikas and his parents came to India, appeared before the magistrate and were released on bail. The high court directed that Vikas’ passport be impounded on grounds that efforts were being made for a reconciliation. But the reconciliation talks broke down and his passport was returned with permission to go abroad subject to a bank guarantee of Rs 1 lakh. 

On November 21, 2005, Monica filed a criminal complaint of cheating with regard to property, under Section 420 of the IPC, against her husband Vikas and her in-laws. It was alleged that material facts with regard to Vikas’ first marriage, particularly that the first wife had alleged acts of cruelty by the husband, had not been disclosed. The magistrate took cognisance under Sections 417/415 of the IPC for cheating, as the allegations were not made out under Section 420 of the IPC, as property was not involved. At the instance of the wife, several attempts at a reconciliation between her and Vikas were made. 

The high court, by an order dated January 21, 2008, dismissed the in-laws’ application for a quashing of the summons with regard to the criminal case of cruelty and criminal breach of trust. The high court held that whether the conduct of the in-laws amounted to cruelty or not would be determined only after detailed evidence by the prosecution at the trial. With regard to criminal breach of trust, the high court held that the allegations indicated that property belonging to the wife was in the possession of her in-laws and that they had refused to return it when they were asked to. The order observed that it was not necessary, at the stage of the quashing, to determine whether the contents of the complaint were true or not. Whether or not the ingredients of criminal breach of trust were made out would be determined at the trial. The father-in-law and mother-in-law appealed to the Supreme Court against the high court’s order refusing to quash the summons with regard to the criminal case.  

The Supreme Court examined the ingredients of Section 498 A of the IPC and observed that, in order to constitute cruelty under the provision, the husband and relatives’ conduct should be such as to be likely to drive the woman to suicide or cause grave injury or danger to her life, limb or to her mental or physical health. 

The wife did make a number of allegations with respect to her in-laws. It was alleged that the father-in-law “threatened the complainant to finish her relationship with Mr Vikas Sharma”. That he offered her a sum of Rs 25 lakh as compensation for a divorce by mutual consent and refused to return clothes/jewellery unless a divorce was granted. There were a number of allegations of a general nature against the mother-in-law, such as “poisoning the ears of the son”, giving used lady suits (sic) to the daughter-in-law and “giving perpetual sermons to the complainant”, which would clearly be outside the ambit of the offence of cruelty under the provision. 

The three allegations that deserve scrutiny are that the mother-in-law kicked the daughter-in-law; that she humiliated and harassed her by repeatedly saying that her son would be a second-time divorcee while the complainant would have been divorced for the first time; and that gifts/cash given by invitees/guests had been appropriated by the mother-in-law. 

It is important to keep in mind that summons to appear are quashed when, even if the allegations made are taken to be true, they do not constitute an offence or make out a case against the accused. The correctness or falsity of the allegations is generally left to be determined by the trial court, based on the evidence adduced. In the present case, the apex court judgment declared that even if the allegations made in Monica’s complaint were taken at face value and accepted in their entirety, they did not constitute the offence of cruelty under Section 498 A and that no case had been made out against the in-laws. This, in effect, means that kicking by the mother-in-law, or harassing and humiliating by threatening the daughter-in-law with divorce have been held not to amount to cruelty under Section 498 A. 

After holding that no case for cruelty had been made out under Section 498 A, the judgment adverts to the allegation that the mother-in-law had taken the gifts/cash given by invitees/guests and holds that this prima facie would fall within the offence of criminal breach of trust, under Section 406 of the IPC. Applying the view taken to the case, the court quashed the summons issued to the mother-in-law and father-in-law to appear before the magistrate with regard to the offence of cruelty under Section 498 A. It directed that proceedings against the mother-in-law could continue with respect to criminal breach of trust, under Section 406 of the IPC. 

The Supreme Court does not just decide individual cases -- it lays down the law of the land. The proposition that kicking and threats of divorce do not cause a woman to feel suicidal, nor do they gravely injure her physical or mental health seems too broad a proposition. Apart from the factor of a divorced woman’s status in our society, circumstances can indeed be visualised where a woman feels suicidal when she is threatened by divorce. It could gravely injure and traumatise her psyche, thereby jeopardising her mental health. Today, the law recognises that words, barbs and acts that are not physical or violent could be wounding and hurtful enough to amount to cruelty. Even if kicking may not cause grave physical injury, it could be extremely degrading, demeaning and traumatic to the individual. The importance of the judgment is not confined to the two acts of kicking and threatening divorce being taken out of the purview of cruelty, under Section 498 A in the present case. Following the precedent set by the apex court, numerous other acts and conduct thought “akin” or similar to kicking and threats of divorce may be taken out of the ambit of the offence of cruelty to a married woman by her husband or his relatives by the courts.

(Rakesh Shukla is a Supreme Court lawyer)

Infochange News & Features, September 2009