Husband keeping Girl friend attracts 498a as cuelty to wife?

Dear all !!!!!

Although Supreme Court has ruled that an illicit relationship of a married man with another woman amounts to cruelty to his wife but here is question of friendship with a girl not illicit relation ship.

We should go thru the actual wordings of 498A:-      

1*[CHAPTER XXA 

OF CRUELTY BY HUSBAND OR RELATIVES OF HUSBAND

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 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.] 

1. Chapter XXA inserted by Act 46 of 1983, s. 2.       

SO IN MY VIEW KEEPING GIRLFRIEND IN NOT A CRUELTY AS DEFINED IN 498A...

MANY TYPES OF CRUELTIES  ARE THERE.

AMONG THEM THREE ARE PROMINANT.

MATRIMONIAL CRUELTY OF CIVIL NATURE

MATRIMONIAL CRUELTY OF CRIMINAL NATURE 

MATRIMONIAL CRUELTY OF CRIMINAL NATURE WITH INTENTION TO COERCING HER.

UNTILL IT IS COERCING, IT IS NOT A CRUELTY UNDER S 498A IPC.

IF THE TWO (HUSBAND AND GIRLFRIEND) LIVING SEPERATELY, PEACEFULLY AND NOT DISTURBING THE WIFE - IT CAN NOT COERCING  THE MARRIED WOMAN.

THEREFORE QUESTION OF 498A DOES NOT ARISE.

MR RAVIKANT SONI IS PERFECT.

The Supreme Court has ruled that an illicit relationship of a married man with another woman amounts to cruelty to his wife.

Laxman Ram Mane from Raigarh district of Maharashtra, whose wife had committed suicide after being subjected to beating and humiliation by him when she objected to an illicit relationship

THE SUCIDE FOR HUMILIATION BY HUSBAND, AND NOT FOR THE SAID RELATIONSHIP.

it is not a cruelty Attracting provisions of sec 498a.

yes it is a cruelty sufficient enuf to enable a wife to seek divorce on ground of adultery

Thanx Arup ji.....

Really appreciation of good things leads us to a great self confidence.

Thanx again...

The two statements of Mr.Assumi are mutually contradicting and confusing. First he says 'nice girlfriend'. Then he elaborates

'but he also loves his girl friend as much as he loves his wife, and the wife is very much hurt by his affairs with her husband's girl friend as they used to meet daily, and are just inseperable twosome.'

From his second statement it appears that the man and the girl-friend are close to the next step of s*xual relationship. At least his wife can suspect such relationship. It can be a case for divorce. Whether it is cruelty by the husband only court can decide after getting all the details.

A nice girl-friend is different. These days men and women work together at the work-place and frienships can develop between colleagues. Sometimes it can develop into more intense relationships as well.

@ Author,

It is a nice way to put this question here and my guess is you may be trying to circumvent the actual ‘conduct” of husband and are probably trying to bring him into some sort of “legal straight jacket”, well enough it is fine for me sofar as husband is saved :-)


However for starter I say “having a nice GF by a Husband is not cruelty to wife” and flip view of mine is also that for a smart criminal Lawyer to turn the same table 180 degree agasint the husband is also possible and for those wordings (read below reasoning) I leave “feminist” voices in LCI forum to apply their respective brains and give detailed reasoning and coming back to your nice question and for my above starter husband pie read down the lengthy argument (reasoning) I propose to bail him out;


As @ Soni reproduced the Bare Act taking the cue from there a bare perusal shows that the word `cruelty' encompasses any of the following elements :-

(i) Any `willful' conduct which is of such a nature as is likely to

drive he woman to commit suicide; or

(ii) any `willful' conduct which is likely to cause grave injury to

the woman; or

(iii) any `willful' act which is likely to cause danger to life, limb

or health whether physical or mental of the woman.

So far as criminality attached to word `harassment' is concerned, it is independent, of `cruelty' and is punishable in the following circumstances:-

(a) Where the harassment of the woman 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

(b) Where the harassment is on account of failure by her or any

persons related to her to meet such demand.

It is apparent, neither every cruelty nor every harassment has element of criminal culpability for the purposes of Section 498-A. There is no problem where there is physical violence and infliction of injury which is likely to cause grave injury or danger to life, limb or health. In such cases, facts will speak for themselves. We have adopted this definition from English Law though for the purpose of divorce on the ground of cruelty, Indian Law defines it as a conduct as to cause a reasonable apprhension in the mind of the petitioner that it will be harmful or injurious for the petitioner to live with the other party. Element that cruelty should be of such nature as to cause `danger' to life, limb or health or as to give rise to reasonable aprehension of such a danger does not exist in Indian Laws of Divorce.

This ingredient is of much sterner and higher degree. Supreme Court in Dr.N.G.Dastane Vs. Mrs.S.Dastane (1975) 2 SCC 326 has referred to this aspect of `cruelty' like this:-

“as under the English law, that the cruelty must be of such a

character as to cause `danger' to life, limb or health or as to give

rise to a reasonable apprehension of such a danger. Clearly danger to

life, limb or health or a reasonable apprehension”

It would also be unwise for me to categorize specific acts or conduct which are capable of amounting to cruelty as such categorization cannot be put in strait jacket mould. In this regard, I am reminded of words of wisdom of LORD TUCKER who said :-

“special pronouncement to create certain categories of acts or conduct as

having or lacking the nature or quality which render them capable or incapable in all circumstances of amounting to cruelty in cases where no physical violence is averred. Every such act must be judged in relation to its surrounding circumstances, and the physical or mental condition or susceptibilities of the innocent spouse, the intention of the offending spouse, and the offender's knowledge of the actual or probable effect of his conduct on the other's health are all matters which may be decisive in determining on which side of the line a particular act or course of conduct lies. It is, generally speaking, not possible to compartment acts for the purposes of relevance as being grows so as to constitute cruelty or less gross so as not to constitute cruelty, though there may be extreme cases where the acts in themselves are so trivial as to justify dismissal of an action for lack of relevance without proof. It is with regard to the (Jamieson Vs. Jamieson (1952) 1 All E R 875)”

When analysis of such human sensibilities, affairs and conduct is under discussion, I would be failing if I don't quote Lord Denning, a celebrated and legendary Judge of this century. Lord Denning says:-

“When there is no intent to injure, they are not to be regarded as cruelty unless they are plainly and distinctly proved to cause injury to health......when the conduct does not consist of direct action against the other, but only of misconduct indirectly affecting him or her, such as drunkenness, gambling, or crime, then it can only properly be said to be aimed at the other when it is done, not only for the gratification of the selfish desires of the one who does it, but also in some part with an intention to injure the other or to inflict misery on him or her. Such an intention may readily be inferred from the fact that it is the natural consequence of his conduct, especially when the one spouse knows, or it has already been brought to his notice, what the consequences will be, and nevertheless he does it, careless and indifferent whether it distresses the other spouse or not. The court is, however not bound to draw the inference. The presumption that a person intends the natural consequences of his acts is one that may-not must-be drawn. If in all the circumstances it is not the correct inference, then it should not be drawn. In cases of this kind, if there is no desire to injure or inflict misery on the other, the conduct only becomes cruelty
(Kaslefsky Vs. Kaslefsky (1950) 2 All E R 398)”

Well, as we all are aware, Hon’ble Supreme Court of India laid the following definition of "mental cruelty" in V.Bhagat Vs. Mrs.D.Bhagat AIR 1994 SC 710:-

“the parties cannot reasonably be expected to live together. The

situation must be such that the wronged party cannot reasonably be

asked to put with such conduct and continue to live with the other

party. It is not necessary to prove that the mental cruelty is such

as to cause injury to the health of the petitioner.

The word "cruelty" is to be used in relation to human conduct or

human behavior. It is the conduct in relation or in respect of

matrimonial duties and obligations. It is a course of conduct of one

which is adversely affecting the other. The cruelty may be mental or

physical, intentional or unintentional. "

In S.Hanumanta Rao Vs. S.Ramani 1999 (3) SCC 620, Supreme Court

observed as under:-

13. Parameters of what constitutes cruelty in matrimonial affairs

have been well carved out in American Jurisprudence 2nd edition Vol

24 page 206. These are:-

to a reasonable person or a person of average or normal sensibilities, but whether it would have that effect upon the aggrieved spouse. That which may be cruel to one person may be laughed off by another, and what may not be cruel to an individual and

14. Thus to ascertain marital cruelty though ordinarily whole series of acts or conduct should be weighed to infer cruelty yet an isolated act can lead to inference of cruelty if its gravity or seriousness is of such a magnitude that it is likely to cause grave injury to physical or mental health of victim spouse. Composite picture should be drawn as to the acts, incidents or conduct for ascertaining whether these amount to cruelty-physical or mental. Unless such kinds of physical or mental ill-treatments when taken together lead to the inference of persistent cruelty, charge of cruelty cannot stick.

Though intention to cause injury is not an essential ingredient regard may be had as to the actual intention or knowledge on the part of the offending spouse as to actual or probable effect whether it would cause injury to physical or mental health. Again acts or conduct should be judged from the angle of a person possessing ordinary intellectual capabilities.

For the purpose of Section 498A IPC which is peculiar to Indian families victim spouse is always the `wife' and guilty is the husband and his relatives-near or distant, living together or separately. Ingredients of `cruelty' as contemplated under section 498A are of much higher and sterner degree than the ordinary concept of cruelty applicable and available for the purposes of dissolution of marriage i.e. Divorce. In constituting `cruelty' contemplated by Section 498A IPC the acts or conduct should be either such that may cause danger to life, limb or health or cause `grave' injury or of such a degree that may drive a woman to commit suicide. Not only that such acts or conduct should be "willful" i.e intentional. So to invoke provisions of Section 498A IPC the tests are of stringent nature and intention is the most essential factor. The only test is that acts or conduct of guilty party should have the sting or effect of causing grave injury to the woman or are likely to cause danger of life, limb or physical or mental health.. Further conduct that is likely to drive the woman to commit suicide is of much graver nature than that causing grave injury or endangering life, limb or physical or mental health. It involves series of systematic, persistent and willful acts perpetrated with a view to make the life of the woman so burdensome or insupportable that she may be driven to commit suicide because of having been fed up with marital life.

Similarly offence of `harassment' is peculiar to Indian conditions and society where evil of dowry and its perpetuation through customary gifts or demands is widely prevalent and is eating the very vitals of matrimony and tearing familial social fabric apart. To curb this evil, the acts of not only the husband but the entire household have been brought within the net of "harassment of a woman" if done to coerce her or her relatives to fulfill the unlawful demands for property or valuable security.

The word `harassment' in ordinary sense means to torment a person subjecting him or her through constant interference or intimidation. If such tormentation is done with a view to `coerce' any person and in this case, the wife to do any unlawful act and in this case to meet the unlawful demand of property or valuable security, it amounts to "harassment" as contemplated by Section 498-A. Word `Coercion' means pursuading or compelling a person to do something by using force or threats. Thus to constitute "harassment" following ingredients are essential:-

(i) Woman should be tormented i.e. tortured either physically or mentally through constant interference or intimidation;
(ii) Such act should be with a view to pursuade or compel her to do

something which she is legally or otherwise not expected to do by using force or threats;

(iii) Intention to subject the woman should be to compel or force her or her relatives to fulfill unlawful demands for any property or valuable security.

As author says only (probable) allegation against the respondents (accused) is that he has a “nice GF’ may be a co-worker and it is alleged by Complainant that accused spends more time with this GF and neglects his husbandly duties thus it is mental cruelty insofar as S. 498a IPC is concerned and when these allegations when tested on the anvil of aforesaid tests, do not make out a case of either `cruelty' or `harassment' as contemplated by section 498A IPC. Having a GF might have hurt her feelings and unproved allegations of spending more time with GF might have been unkindly and incisive by the husband (accused herein) but by no stretch of imagination, such a conduct involves any of the ingredients of either offence under section 498A IPC or 406 IPC. Neither such an act or conduct has the effect of driving the woman to commit suicide nor of causing grave injury nor is likely to cause danger to life or limb nor did it amount to tormenting her either physically or mentally to compel or force her or her relatives to fulfill the demands of any property or valuable security.

@ Autor, I say for the foregoing reasons, the Complaint (case if any) is highly misconceived and is being used as a tool to hold the entire household to ransom and

jeopardy. Hence, Complaint case (if it ever goes onto the floor) is bound to be dismissed.


At the end I add I have intentionally omitted reference to Y. Abraham Ajith & Ors.Vs. Inspector of Police, Chennai & Anr.  Appeal (crl.) 904 of 2004 insofar as the definition of 'relative" in context to husband e as in applicability to file charges against her U/s. 498a IPC was discussed at length and her allegation on the other female failed the test of 'relative to a husband" miserably.

I am not lawyer but I think that I am a person possessing ordinary intellectual capabilities. I am very impressed with such an exhaustive treatise on the subject from tajobsindia, a professional person.

Lord Macaulay would not have anticipated the need for such a section in IPC like Section 498a, more than 150 years ago.

I think (I am not a lawyer) that any Act of Parliament will start with preamble giving the purpose and need for the Act. I feel that the preamble is as important as the Sections in the Act. The preamble would be a guide for lawyers and judges to interpret what the framers of the law had in mind.

I also find that often when an Act is amended, the preamble is dropped. This is very unfortunate.  If the original preamble is no longer valid, it should be redrafted.

I feel that all this confusion is because Section 498a is part of IPC. I do not know whether IPC has a preamble and even if it had, it would not have covered the actual purpose of 498a. Is there an explanation under 498a?

In an Act like the Domestic Violence Act even a layman will know the purpose of the Act. Under IPC, when cruelty is mentioned as under 498a, it is as though cruelty can be only towards a woman, a wife in particular.

Both Mr. Ravikant Soni and tajobsindia say that having a girl-friend is not cruelty and it will not lead to suicide by wife.

Mahinder Kumar quotes a Supreme Court observation:

MONDAY, NOVEMBER 29, 2010

Supreme Court: Illicit relationship of married man is cruelty to his wife.

 In the particular case, the wife had actually committed suicide.

 Mr. Ravikant Soni counters by saying “it is only girl-friend and not illicit relationship. How does he know? In his second averment Mr. Assumi elaborates on the relationship between the man and his girl-friend. There is enough in that to make a wife suspect their relationship. And just like the Raigad wife, if this wife also commits suicide. Then the definition of cruelty under section 498a will be satisfied. Is that so? Suppose the aggrieved wife deposes in the court that she would commit suicide, if her husband does continue the girl friend relationship. There was an old line of thinking that a person who says that he will commit suicide will not do so and a person, who had committed suicide, would not have announced that when alive.     But modern psychologists and psychiatrists say the opposite.

 I feel that Section 498a should have been under one of the Acts aimed towards emancipation of women and not under IPC. Also the preamble to an Act is very important in interpreting the clauses under the Act.

Friends, lets find a solution, why cant all three i.e. husband, wife and GF sit and resolve the issue, If  GF and husband had illegal affair, yes it is a mental cruality, and filing 498a does not solve the issue.  Let wife file suitable case against GF and screw her happyness and bring smile in her family.
 

Hi Mr.N.K.Assumi,

this act of husband amounts to cruelty to the wife and it attracts 498A 

"this is definately mental cruelty to wife and such husbands should be punished" wrote an young law student. Having a friend in opposite s*x is not a crime- I understand. When the friendship transform to another diamention creating marrital troubles may attract the term cruelty. A married man attracted to a charming girl friend may be due to various reasons and points to the need for an urgent counselling.

498A shall not be misused at any cost.

There are women, who are so possessive and suspicious (there are men also) that they will not like their husbands even looking at another woman. With women going out and going for employment in large numbers, men and women meet and they become friends also. Such friendship cannot be considered as cruelty to one’s wife. She cannot reasonably object either. Sometimes such friendship can develop into intimate relationship leading to the bed-room also. In any case neither the husband nor the girlfriend will tell the wife, what they did. The wife can only suspect. There will be no proof normally.  If there was proof, at the most she can sue for divorce. But listen to the following.

Once the relationship got soured between one of my very junior colleagues and his wife.  He was past 50 at that time. One of his daughters had got married, another was working in a firm and his son was in college. Though the family was staying in official quarters, the wife used to lock out her husband. He was a mild and timid person at least in the office. Mostly he was staying with his very old parents in their small apartment though he had been allotted quarters and rent and other charges were regularly deducted from his salary. I and other colleagues thought that his wife was unnecessarily harassing him.

One night his brother telephoned me and said that his brother (my colleague) has been arrested and kept in the lock-up on a complaint from his wife and that he wanted a lawyer to bail him out. I had never seen a court-room except in cinema and I did not know any lawyer.  Then I remembered a lady lawyer. She was a criminal lawyer and her clients mostly belonged to the underworld. She had also a son through one of her clients. The boy’s father had left for the gulf and was never heard of thereafter. When angry she used to scold her son “son of a thief”.

As I didn’t know any other lawyer and the person was desperate, I telephoned the lady lawyer and she readily agreed to take up the case. I told the person to go and meet her.

Next day I telephoned one of my senior colleagues to find out whether he can any way help. He was not at home and his wife answered the phone. I told her why I called. She immediately started against my colleague, who had been arrested. She also said that he had relationship with a female colleague in the office and the police had arrested him from the female colleague’s residence.  Later I met my senior colleague and told him what his wife told me. He replied that it was true that he was arrested as his wife told me, but the female colleague’s husband also was present when the police went there. Thus it appeared to be a male-female clash as it often happens in this forum.

The police produced him in the court on the next day and told the judge that they had not yet prepared the case papers and hence wanted more time. The judge agreed and he was taken back to the jail.  I knew this only when his brother telephoned me again after a few days. He also said that the lady lawyer was worse than the police. She had already collected up to Rs.30,000/- saying that she needed the money to bribe the police and others. Anyway the accused was still in jail.

Later the victim colleague told me that he was transferred to Arthur Road jail and was released only after 15 days, after he admitted the allegations against him and undertook not to meet the female colleague again. He said that it was not true and he gave undertaking only to gain freedom.

Under the Government Servant’s Conduct Rules, a Government Servant will be suspended, if he had to spend more than 24 hours in jail. Later it would be very lengthy and tedious to get back the job. I prevailed on the administration and he was allowed to join without any suspension.

Only after joining the Forum 3 months back, I came to know about 498A and DV Act. Those days I was wondering how a person’s freedom could be curtailed for flimsy or no reason. In retrospect after so many years, I think, it would have been the mischief of 498A.

So Mr. Assumi; ask your client to be careful. 498A is still there, you may be better than the lady lawyer, notwithstanding.

Depends upon fact of the case!

The friendship of individuals can not be questioned within its limit. It become cruelty to one partner by the other when the friendship causes interferes in the marital affairs of the couple. If the partners are duty bound to each other within the wedlock, I think the above friendship may not attract the interference of the law of the land. This is my personal view.