Reportable IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 299 OF 2003

MANJU RAM KALITA …. Appellant

Versus

STATE OF ASSAM …. Respondent

J U D G M E N T

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. 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.  

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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  

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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

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(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.”

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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,  

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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)

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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  

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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.

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