Husband Returning Home Late, Eating Out Is Not Cruelty Under S.498A; Bombay HC

The Bombay High Court recently held that husband returning home late from work, eating out or quarrelling cannot be considered cruelty under Section 498 A of the Indian Penal Code and upheld the acquittal of Anil Kurkotti, a 35-year-old man whose wife Swati committed suicide after several years of marriage.

Justice KR Shriram heard State of Maharashtra's appeal against a judgement of trial court dated March 21, 1997 acquitting Anil, his parents and brother for offences punishable under Sections 498 A and 306 of IPC.

Case background

According to the prosecution, deceased Swati was married to Anil more than seven years prior to her death. Swati was born in 1974 and marriage appears to have taken place in 1985, which means she was 11 years of age when she got married. Ever since Swati got married, she was constantly harassed by Anil, his father, his mother and his brother.

It was also the case of the prosecution that the accused Anil told complainant to take his daughter Swati back to his house because they did not want her to live with them. Although, the complainant got her back, through mediation of a third party, the accused were advised to treat Swati well and then the accused assured the complainant that Swati would be treated well and took her back to the matrimonial home, but continued the harassment. Subsequently, Anil and Swati moved out of the matrimonial home and started living separately and in that house, Swati committed suicide.

On September 23, 1995, at about 5 am, Swati committed suicide by hanging and at the time of suicide, Swati's in-laws were not living with them. Anil informed the police about Swati's death and when the police visited the spot, Swati was found hanging from the ceiling fan on a cotton rope. On the same day, the father of deceased lodged a complaint on the basis of which offence came to be registered.

Judgement

After going through the material on record, Court made some preliminary observations-

"Father of the deceased, who is also the complainant in the case, stated in his cross-examination that his daughter attained puberty in her matrimonial home, but in another instance, he stated that two years after the marriage, Swati lived in the parental house because she had not attained the age of puberty.

This is just one of the mysteries I have not been able to unravel. There are many other grey areas or mysteries.

What kind of harassment, whether it is physical, mental, is not described anywhere. There are only general statements. There are no eye witnesses to even one incident of harassment."

Prosecution relied upon Section 113 A of the Indian Evidence Act (presumption as to abetment of suicide by a married woman) in order to seek conviction for abetment of suicide. As per this provision, if a married woman committs suicide within a period of seven years from the date of her marriage and her husband or such relative of her husband subjected her to cruelty, the Court may presume, having regard to all the other circumstances of the case, that such suicide had been abetted by her husband or by such relative of her husband.

To this, Justice Shriram noted-

"The exact date of marriage has not been given anywhere. Even the father of the deceased, when he remembers in which year his brother joined service or daughter of Accused No.3 was given in marriage to his brother or in which year deceased Swati was born, strangely does not remember whether marriage of his daughter Swati was performed in the year 1985 or the date of marriage. Swati died on 23-9-1995. From the evidence of P.W.-1, it does appear that it was certainly more than 7 years after the marriage the deceased committed suicide. Therefore, the presumption under Section 113A of the Indian Evidence Act, cannot apply."

Finally, Court observed-

"On considering the entire evidence led by the prosecution, I find that there is no material to convict any of the Accused. In the evidence of many witnesses, there are lot of omissions and contradictions and some, I would say, are also hearsay.

There will be ordinary wear and tear in any matrimonial life but that does not amount to cruelty or harassment. It is settled law that every type of harassment or every type of cruelty, would not attract Section 498A or Section 306 of IPC. It must be established that the harassment or cruelty was with a view to force the wife to commit suicide or to fulfil illegal demands of husband or in-laws. The witnesses have given evidence of harassment only on the basis of what the deceased Swati is supposed to have told them.

There is no evidence to show that the accused in any way instigated or aided Swati to commit suicide. Therefore, the Trial Court has rightly concluded that on the face of records, there is no evidence to conclude that the Accused in any way abetted the commission of suicide."

Dismissing State's appeal, Justice Shriram said-

"The defence of the Accused No.1 appears to be more probable, according to whom Swati was fond of children, but as she could not conceive after 7 to 8 years after marriage, she was unhappy. Added to that she was unhappy with him returning home late or eating outside due to his work. There used to be quarrel between husband and wife but eating out or quarreling, cannot be considered as harassment or cruelty as contemplated under Section 498A of the IPC."