REPORTABLE February 13, 2009

IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 57 of 2002
Gopal ......Appellant
Versus
State of Rajasthan .....
Respondent
J U D G M E N T
Dr. ARIJIT PASAYAT, J

1. Challenge in this appeal is to the judgment of a learned Single Judge of the Rajasthan High Court allowing the appeal of the State Government and holding the appellant guilty of offence punishable under Section 498-A of the Indian Penal Code, 1860 (in short ‘IPC’) while upholding the acquittal in respect of offence punishable under Section 306 IPC. The appellant was sentenced to undergo rigorous imprisonment for one year and to pay a fine of Rs.2,000/-with default stipulation.

2. Background facts giving rise to the prosecution are as under:
On 4.7.1988, at about 10 p.m. Laxman Singh (P.W.13) who was S.I. in the Police Station Nimbaheda received an information from the Medical Officer Dr. R.D. Bhatt (P.W.15) from the Hospital and on receiving that information, Laxman Singh reached the hospital where Prem Chand was present who informed orally to Laxman Singh that in the morning all the persons of his family had gone to the field in the house; wife of his son Gopal, namely, Ram Kumari (hereinafter referred to as “the deceased”) was alone and in the noon, when he went to his house, he found the deceased unconscious and then he called his wife Lahar Bai (PW-4) who was living nearby and she also came there. Then he called doctor and doctor advised him that she should be taken to the hospital and in the hospital, when the treatment was going on, the deceased died.

This oral report was reduced into writing and the same is Ex. P/6 and on this report, Laxman Singh (P.W.13) registered Marg FIR No.6/88 under Section 174 of the Code of Criminal Procedure, 1973 (in short the ‘Code’) and started investigation.

During investigation, post mortem of the dead body of the deceased was conducted by Dr. R.K. Gupta (P.W. 11) and Dr. R.D. Bhatt (P.W.15) and the post mortem report is Ex.P/4 and both the doctors have stated that cause of death of Smt. Ram Kumari was asphyxia and this may be probably due to opium poisoning and they also found 6 bruises, three on the right thigh and three on her right hip. Thereafter P.W.13 Laxman Singh came to the conclusion that accused Gopal who was husband of the deceased used to treat her with cruelty and used to beat her and a case for offence under Sections 498A and 306 I.P.C. was made out and he himself lodged FIR Ex.P/8 and on this FIR Ex.P/8 investigation of the case was done by Netrapal Singh (PW-14) who was S.H.O. in the police station Nimbaheda. After usual investigation challan was submitted in the Court of Magistrate for offence under Section 498A and 306 IPC from where the case was committed to the Court of Additional Sessions Judge, Nimbaheda.

Since the accused pleaded innocence trial was held and 15 witnesses were examined. The trial Court directed acquittal of the appellant inter-alia holding as follows:

(i) It has not been proved by the prosecution that the deceased has been subjected to cruelty and single act of cruelty or beating is not sufficient.

(ii) Since the deceased had undergone tubectomy operation after delivery of 3rd child and because of that she was not in a position to work and she used to feel restlessness and accused respondent used to ask her to work and there was dispute between husband and the wife on this point and such type of dispute cannot be covered.

Aggrieved by the judgment and order, State filed an appeal and as noted above the same was allowed.

3. In support of the appeal, learned counsel for the appellant submitted that the marriage took place some time in1976 and the date of occurrence is July, 1998 and therefore Section 113-B of the Indian Evidence Act, 1872 (in short the ‘Evidence Act’) has no application. Further it is submitted that the ingredients of Section 498-A have not been established.

4. It has been concluded by the High Court that suicide has not been proved. Therefore, Section 498-A has no application. Section 498-A(b) relates to demand of dowry for which there is no evidence.

5. In response, learned counsel for the respondent-State submitted that the case is covered by Section 498-A(b). It is submitted that in any event injuries have been established and therefore Section 323 IPC has been clearly established. It is by way of reply learned counsel for the appellant submitted that no charge has been framed for Section 323.

6. The ingredients of Section 498-A are as follows:

“ 4 98A: 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 purpose of this section ’cruelty’ means –

(a) 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;
or

(b) 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.”

7. Consequences of cruelty which are 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 are required to be established in order to bring home the application of Section 498A IPC. Cruelty has been defined in the Explanation for the purpose of Section 498A. Substantive Section 498A IPC and presumptive Section 113B of the Evidence Act have been inserted in the respective statutes by Criminal Law (Second Amendment) Act, 1983. It is to be noted that Sections 304B and 498A, IPC cannot be held to be mutually inclusive. These provisions deal with two distinct offences. It is true that cruelty is a common essential to both the Sections and that has to be proved. The Explanation to Section 498A gives the meaning of ‘cruelty’. In Section 304B there is no such explanation about the meaning of ‘cruelty’. But having regard to common background to these offences it has to be taken that the meaning of ‘cruelty’ or ‘harassment’ is the same as prescribed in the Explanation to Section 498A under which ‘cruelty’ by itself amounts to an offence. Under Section 304B it is ‘dowry death’ that is punishable and such death should have occurred within seven years of marriage. No such period is mentioned in Section 498A. A person charged and acquitted under Section 304B can be convicted under Section 498A without that charge being there, if such a case is made out. If the case is established, there can be a conviction under both the sections. (See Akula Ravinder and others v. The State of Andhra Pradesh (AIR 1991 SC 1142). Section 498A IPC and Section 113B of the Evidence Act include in their amplitude past events of cruelty. Period of operation of Section 113B of the Evidence Act is seven years, presumption arises when a woman committed suicide within a period of seven years from the date of marriage.

8. The above position was highlighted in Balwant Singh & Ors. v. State of H.P. [2008(10) JT 589].

9. Section 498A IPC has two limbs. The first limb of Section 498A provides that whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished. ‘Cruelty’ has been defined in clause (a) of the Explanation to the said Section as any willful conduct which is of such a nature as is likely to drive to a woman to commit suicide. When there is demand of dowry, the case comes under clause (b) of the Explanation to Section 498A. Clause (a) of the Explanation has definite application to the facts of the present case. Additionally, effect of Section 113 A of the Indian Evidence Act cannot be lost sight of.

10. Further as per Section 113 A of the Evidence Act when the question as to whether commission of suicide by a woman had been abetted by her husband or any relative of her husband and it is shown that she had committed suicide within a period of seven years from the date of her marriage and that her husband or such relative of her husband had subjected her to cruelty, the court may presume that such suicide had been abetted by her husband or by such relative of her husband. This has not been rebutted by the appellants.

11. For bringing in application of Section 306 IPC, suicide has to be established. In the instant case, the trial Court and the High Court have categorically held that no suicide has been established.

12.So far as Section 498-A(b) is concerned, there must be an evidence of demand of dowry.There is no evidence in that regard adduced by the prosecution. That being so, as rightly contended by learned counsel for the appellant Section 498-A(b) has no application.

13. The crucial question is whether the appellant can be convicted in terms of Section 323 IPC. Even if it is so as contended by learned counsel for the respondent, considering the fact that the appellant has already suffered custody of about 6 months, we do not consider it necessary to go into that question. The appeal is allowed. The conviction as recorded is set aside. The bail bonds executed by the appellant for release on bail pursuant to the order dated 14.1.2002 shall stand discharged.

……………………………………J.
(Dr. ARIJIT PASAYAT)
……………………………………J.
(Dr. MUKUNDAKAM SHARMA)
New Delhi,
February 13, 2009

Hi,

Very useful judgement, as I am writing argument now. Thanks...

Does this mean Dr. ARIJIT PASAYAT, J overruled the intend of legislator as mentioned in Act 46 of 1983?

From Act 46 of 1983

Willful conduct of such a nature by the husband or any relative of the husband as is likely
to drive the woman to commit suicide or cause grave physical or mental injury to her,
and
harassment of a woman by her husband or by any relative of her husband with a view to coercing
her or any of her relative to meet any unlawful demand for property would be punishable as cruelty

Even if that word in red is OR i would not agree with Arijit :) because the subject matter covered in
Statement of Objects and Reasons talk only about DOWRY.


To my understanding Arijith's version of 498a(a) works ONLY when wife is dead with injuries!.

This should go for revision on a division bench and get 498a out of the scope. It is mere IPC 323!!!

"So far as Section 498-A(b) is concerned, there must be an evidence of demand of dowry"

There can be two types of evidences

1) Witness evidence
2) Documentary evidence

If a person didn't demand dowry there cannot be any documentary evidence present.
But in such cases there are witness evidences (most of the time the girl and her close relatives). Supreme court has given decisions that in order to prove dowry demand (can be read as an unlawful demand of property in the context of 498a?) there must be material evidence present.

However, lower courts sometime proceed with conviction based totally on the oral evidence of interested witnesses. This gets challenging for innocent people who are accused in this mess.

498aFighter

Prassoon,

You better read the complete objects and reasons.

Regards,

Shonee Kapoor

The increasing number of dowry deaths is a matter of serious concern. The extent of the evil has been commented upon by the Joint Committee of the House to examine the working of the Dowry Prohibition Act, 1961. Cases of cruelty (which cruelty result in dowry death?) by the husband and relatives of the husband which culminate in suicide by, or murder of, the helpless woman concerned, constitute only a small fraction of the cases involving such cruelty. It is therefore, proposed to amend the Indian Penal Code, the Code of Criminal Procedure and the Indian Evidence Act suitably to deal effectively not only with cases of dowry deaths but also cases of cruelty (what is the subject matter here?) to married women by their in-laws.

What for Dowry Prohibition Act act mentioned here?
What is IEA 113A all about? and what does it talk about cruelty?
What is IEA 113B all about? and what kind of death is it talking about?


Are you talking about any other objects and reasons? please enlighten us.

To my understanding, 498a was the outcome of those cases where dowry harassment lead to failed suicide attempts of women. Since the woman is not dead, husband cannot be charged for Murder attempt or abutment of suicide or dowry death and gets no punishment at all.

OTHER reasons of cruelty that leads to suicide can happen to anyone.... Then why is 498a applicable only to wives?

The below judgment is being back in the apex court as a curative petition filed by NCW.
The issue for NCW is in the apex court observation made in Ramesh & Ors. vs. State of T.N. [(2005) 3 SCC 507]...


The reason I am putting here is that 498-A(a) is very narrow and 498-A(b) that holds the matter most.

My argument:
1. The objective of 498-A and 304-B is stop dowry harassment and dowry deaths.
2. It is illogocal to think that an entire family harassed a woman for something that is not dowry.
(a) In other words, Absent a showing a demand for dowry, the case falls flat..
(b) There is a case in Madras High Court which held the conviction for a Husband did not allow wife to watch TV under 498-A(a) -- This is absurd after siphoning 38 lacs from the husband bank a/c.
(c) This now becomes blanket. There are people who commit suicide for failing in a exam.
(d) If anybody is convicted under 498-A(a), there is every chance of foul play, unless some cogent material evidence is shown.

3. Bottom line there are two types of 498-A cases.

(a) NO demand for dowry - 498-A(a)

(1) That means just 498-A(a) - see Shoaib Malik vs. Woman -- Only cruelty - just like the below judgment in the Indian section

(2) only less than 1% fall here

(b) Demand for dowry - 498-A(b)

(1) 99% plaints start from demand of dowry and only speaks about demand of dowry and cruelty in the scope thereof;

(2) In these cases, they fail to show that other reasons exist and bank only on dowry demand - means 498-A(b)

4. That is primarily the reason our FIR's have other sections like 323, so as to bank on them in case 498-A(a) fails. This is like a false case backup plan to harass.

5. See in the International section at the bottom to what overseas courts are saying relating to what is 498-A(a). Indian courts did not pass judments till today on 498-A(a). So use Int'l as persuasive.

--- I N D I A N C O U R T S --

Bhaskar Lal Sharma & Anr. vs Monica on 27 July, 2009 - Supreme Court of India.
referring

In Noorjahan vs. State rep. by D.S.P, [(2008) 11 SCC 55], this Court
held:

"16. Consequences of cruelty which are 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 is required to be established in order to bring home the application of Section 498-A IPC. Cruelty has been defined in the Explanation for the purpose of Section 498-A. Substantive Section 498-A IPC and presumptive Section 113-B of the Evidence Act have been inserted in the respective statutes by the Criminal Law (Second Amendment) Act, 1983. It is to be noted that Sections 304-B and 498-A IPC cannot be held to be mutually inclusive. These provisions deal with two distinct offences. It is true that cruelty is a common essential to both the sections and that has to be proved. The Explanation to Section 498-A gives the meaning of "cruelty".

17. The object for which Section 498-A IPC was introduced is amply reflected in the Statement of Objects and Reasons while enacting the Criminal Law (Amendment) Act, 1983 (46 of 1983). As clearly stated therein the increase in the number of dowry deaths is a matter of serious concern. The extent of the evil has been commented upon by the Joint Committee of the Houses to examine the work of the Dowry Prohibition Act, 1961. In some cases, cruelty of the husband and the relatives of the husband which culminate in suicide by or murder of the helpless woman concerned,constitute only a small fraction involving such cruelty. Therefore, it was proposed to amend IPC, the Code of Criminal Procedure, 1973 and the Evidence Act suitably to deal effectively not only with cases of dowry deaths
but also cases of cruelty to married women by the husband, in-laws and relatives. The avowed object is to combat the menace of dowry death and cruelty."

It was observed in the fact situation obtaining therein:

"18. So far as the present appellant is concerned, the evidence is inadequate to show that she was party to any demand for dowry....In other words, she did not make any demand for dowry.


In Sushil Kumar Sharma vs. Union of India & Ors. [(2005) 6 SCC

281], this Court held:

"10. The object for which Section 498-A IPC was introduced is amply reflected in the Statement of Objects and Reasons while enacting the Criminal Law (Second Amendment) Act 46 of 1983. As clearly stated therein the increase in the number of dowry deaths is a matter of serious concern. The extent of the evil has been commented upon by the Joint Committee of the Houses to examine the work of the Dowry Prohibition Act, 1961. In some cases, cruelty of the husband and the relatives of the husband which culminate in suicide by or murder of the helpless woman concerned, constitute only a small fraction involving such cruelty. Therefore, it was proposed to amend IPC, the Code of Criminal Procedure, 1973 (in short "CrPC") and the Evidence Act suitably to deal effectively not only with cases of dowry deaths but also cases of cruelty to married women by the husband, in-laws and relatives. The avowed object is to combat the menace of dowry death and cruelty.


In Ramesh & Ors. vs. State of T.N. [(2005) 3 SCC 507], it was
opined:

"6. Before we proceed to deal with the two contentions relating to limitation and territorial jurisdiction, we would like to consider first the contention advanced on behalf of the appellant Gowri Ramaswamy. Looking at the allegations in the FIR and the contents of charge-sheet, we hold that none of the alleged offences viz. Sections 498- A, 406 IPC and Section 4 of the Dowry Prohibition Act are made out against her. She is the married sister of the informant's husband who is undisputedly living in Delhi with her family. Assuming that during the relevant time i.e. between March and October 1997, when the 6th respondent (informant) lived in Mumbai in her marital home, the said lady stayed with them for some days, there is nothing in the complaint which connects her with an offence under Section 498-A or any other offence of which cognizance was taken. Certain acts of taunting and ill-treatment of the informant by her sister-in-law (the appellant) were alleged but they do not pertain to dowry demand or entrustment and misappropriation of property belonging to the informant. What was said against her in the FIR is that on some occasions, she directed the complainant to wash WC and she used to abuse her and used to pass remarks such as "even if you have got much jewellery, you are our slave". It is further stated in the report that Gowri would make wrong imputations to provoke her husband and would warn her that nobody could do anything to her family. These allegations, even if true, do not amount to harassment with a view to coercing the informant or her relation to meet an unlawful demand for any property or valuable security. At the most, the allegations reveal that her sister-in- law Gowri was insulting and making derogatory remarks against her and behaving rudely against her. Even acts of abetment in connection with unlawful demand for property/dowry are not alleged against her. The bald allegations made a gainst her sister-in-law seem to suggest the anxiety of the informant to rope in as many of the husband's relations as possible. Neither the FIR nor the charge-sheet furnished the legal basis to the Magistrate to take cognizance of the offences alleged against the appellant Gowri Ramaswamy. The High Court ought not to have relegated her to the ordeal of trial. Accordingly, the proceedings against the appellant Gowri Ramaswamy are hereby quashed and her appeal stands allowed."
---------
Note: The above highlighted was misquoted by the media quoting - Kicking MIL/DIL is not 498A

-- I N T E R N A T I O N A L S E C T I O N ------
--------------------
Note: Some may assume that Int'l Judgments may not hold at all. That is wrong. When there is no prevalent law to interpret it, decision from other jurisdictions are taken into consideration to see what they mean. The most is used from U.S.A and there are numerous decision cited form US Courts. Recently the CIC also started referring to US courts decisions on privacy and fiduciary related exemptions. See e.g below.

In Sushil Kumar Sharma vs. Union of India & Ors. [(2005) 6 SCC
281], this Court held:
From the decided cases in India as well as in United States of America, the principle appears to be well settled that if a statutory provision is otherwise intra-vires, constitutional and valid, mere possibility of abuse of power in a given case would not make it objectionable, ultra-vires or unconstitutional. In such cases, "action" and not the "section" may be vulnerable. If it is so, the court by upholding the provision of law, may still set aside the
action; order or decision and grant appropriate relief of the person aggrieved.
--------------------

In Cesare v. Cesare, 713 A. 2d 390 - NJ: Supreme Court 1998
quoting:

This case is distinguishable from the factual situations in Corrente, supra, 281 N.J.Super. 243, 657 A.2d 440, Peranio, supra, 280 N.J.Super. 47, 654 A.2d 495, and Murray v. Murray, 267 N.J.Super. 406, 631 A.2d 984 (App.Div.1993).
In those cases, the Appellate Division found that the defendants' actions did not qualify as harassment. Corrente, supra, 281 N.J.Super. at 244-46, 249-50, 657 A.2d 440 (calling wife at work to demand money to pay bills and subsequently disconnecting plaintiff's phone, because, in defendant's words, he could no longer afford it, did not constitute domestic violence); Peranio, supra, 280 N.J.Super. at 49-52, 56, 654 A.2d 495 (believing that plaintiff sold his possessions without permission, defendant's statement that he'll "bury her" was not actionable); Murray, supra, 267 N.J.Super. at 410, 631 A.2d 984 (telling wife on various occasions "that he planned to divorce her and leave her, and that he no longer loved or felt attracted by her" was not prohibited by Domestic Violence Act).

The courts in those cases agreed that what occurred between the parties was merely a matrimonial argument concerning money and property in anticipation of divorce. Corrente, supra, 281 N.J.Super. at 250, 657 A.2d 440; Peranio, supra,
280 N.J.Super. at 56, 654 A.2d 495; see Murray, supra, 267 N.J.Super. 406, 631 A.2d 984. The courts therefore expressed concern about the serious policy implications of permitting domestic violence allegations to be "used by either spouse to secure rulings on critical issues such as support, exclusion from marital residence and property disposition,
particularly when aware that a matrimonial action is pending or about to begin." Murray, 267 N.J.Super. at 410-11, 631 A.2d 984 ("[P]redivorce statements respecting absence of affection or physical desire alone were not intended to be sufficient to
fulfill the elements... necessary to constitute harassment...."); Corrente, supra, 281 N.J.Super. at 250, 657 A.2d 440; Peranio, 280 N.J.Super. at 56, 654 A.2d 495. In finding the contested actions to be nothing more than marital disputes, however, the courts in those cases observed that there was no history of threats, abuse, or domestic violence between the parties. Corrente, supra, 281 N.J.Super. at 250, 657 A.2d 440; Peranio, supra, 280 N.J.Super. at 56, 654 A.2d 495; Murray, supra, 267 N.J.Super. at 408, 631 A.2d 984.

In Hoffman, supra, "[w]e recognize[d] that in the area of domestic violence, as in some other areas in our law, some people may attempt to use the process as a sword rather than as a shield. The judicial system must once again rely on the trial courts as the gatekeeper." 149 N.J. at 586, 695 A.2d 236. Therefore, courts must be wary of letting a
complainant use the Domestic Violence Act merely to gain an advantage in a matrimonial proceeding. However, each case depends on its facts and must be examined carefully. Here, plaintiff's testimony revealed a background of improper conduct. Moreover, the court appropriately observed and gave careful consideration to the fact that the parties were headed towards divorce.


--- Best of Luck -- Hope this helps.

haganah -> can you please share the petition and FIR of Shoaib Malik?

You missed the below here.
1. You do not need to confirm the above FIR as 498A (a) or (b)
2. In Muslims the dowry is paid by the groom and not the bride. That lady never complained about demand for dowry, simply because she is dead poor and the groom is filthy rich.
3. The media carried extensively that the groom cheated. In fact the media highlighted 420 rather than 498-A.

Simply put, that FIR is 498-A (a).

The question to the FIR, do not even ask for it via RTI. Why ? - You will get death threats.

dude, isn't that what we call FALSE allegation?

Based on your theory what Ayesha Siddiquie did is 100% right!

dear
The question to the FIR, do not even ask for it via RTI. Why ? - You will get death threats
Are you saying that if all the forum members together ask for RTI of FIR they all will get death threat. Is this scaremongering.
If the world media wants to get the FIR they will also get death threat. Are you saying this bloke is somebody very important than several saints and great persons who contribyted to the welfare of society.
Here is a thought for you. Published from a newspaper and many lordships are mindboggling with it:
Please let my wife kill me as I can't do it myself, parlysied stroke victim pleads.
The principles to be applied are as follows.
The law of murder is primarily used to convict people who act out of mallicious motivation and as such carries a mandatory life sentence. It should not be used to prosecute someone who compassionately helps a person who is suffering to die at their request.

Where does the question arise if it is right or wrong? As far as the law is concerned, she file 420, 498A (a) and her allegations fit that plaint.

It is different matter altogether whether she can corroborate her allegations, which the court never tried that matter.

File an RTI and post your response here. Simply writing on a board is easy. A person does not know the depth of the river, until he/she gets into the river.

Are you saying it will be like below.
http://news.rediff.com/report/2010/jul/ ... rat-hc.htm

Hire a proxy for all your RTI queries.