Manju Ram Kalita Vs.
State of Assam  INSC 1126 (29 May 2009)
IN THE SUPREME COURT
OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 299 OF 2003 MANJU
RAM KALITA .... Appellant Versus STATE OF ASSAM .... Respondent
Dr. B.S. Chauhan, J.
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.
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.
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)
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).
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.
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.
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.
have considered the rival submissions made by learned counsel for the parties
and perused the record.
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.
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 Pentakota Seetharatnam & Ors.,
AIR 2005 SC 4362).
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
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.
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.
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
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 :
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
(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
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.
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 :
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."
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 :
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."
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 :
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."
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.
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.
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.
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.
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
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
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."
Appellate Court dealt with the issue as under :
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
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.
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.
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.
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.
succeeds to the said extent and disposed of accordingly.
(Dr. Mukundakam Sharma)
(Dr. B.S. Chauhan)