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

There are two aspects for Section 498A. (1) The punishment prescribed under the Section. (2) The offence under the Section is congnizable. One will be punished by a court of law when the offense under the Section is proven through due process of law.. But in order to arrest a person under the Section it is not necessary to prove the offence. Just on a complaint by the wife or her people police can put the husband and his relatives behind bars. Husbands are afraid of this. As I have narrated an episode the risk of being arrested and put behind bars is always there. Final conviction or no conviction is only academic, which those well-versed in law, can endlessly discuss.

Barking dogs seldom bite. But unfortunately the dog does not know this adage.

Why are u jumping to Sec 498  ? it may be a false story to get rid of husband from her life . Unless the facts are before u, u cannot just jump to the conclusion. Love and physical relations are two things. There is style now days if the husband does not listen his wife, she uses the weapon of  section 498 .

 

Adv. Sandeep Naik ( Advocate Bombay High Court )

email : sandystorm_1995@rediffmail.com

Mob : 9967056980

In a recent decision in Sunita Jha v. State of Jharkhand,  the Supreme Court has declared that the mere fact of another women living with the husband does not entitle the wife to sustain the claim of cruelty against her in terms of Section 498A of the Indian Penal Code. At best, according to the Supreme Court, such fact could be a ground to claim divorce. 

 

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S.498A. Explanation to "cruelty"

 

 

(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

 

Sum up :  any wilful conduct which of such a nature as is likely to cause grave injury or danger to mental health of a woman. 

 There could be six elements of offence in the above sentence if carefully analysed:

 

1. any wilful conduct which is of such a nature as is likely to drive woman to commit suicide

2. any wilful conduct which is of such a nature as is likely to cause grave injury to life

3. any wilful conduct which is of such a nature as is likely to cause danger to life

4. any wilful conduct which is of such a nature as is likely to cause grave injury or danger to limb

5. any wilful conduct which is of such a nature as is likely to cause grave injury or danger to mental health of a woman

6. any wilful conduct which is of such a nature as is likely to cause grave injury or danger to physical health of a woman

 

However, the relief for men is the courts use (explanation to cruelty) part (a) as mentioned above very sparingly.   When mental cruelty is to be considered, the yardstick the court followed so far is that the woman should commit suicide, so that a husband is convicted under 498A for mental cruelty.  However the position of law is different.  When the punishment is up to three years, someone who indulges in mental cruelty may be awarded a sentence of only three months instead of sentencing for two or three years.  But courts ignore this aspect that for smaller offences within meaning of 498A they can give smaller term punishment of three or four months too. 

 

There is a reason why courts do not find much difference between pt.no.1 and pt.no.5 in the analysis shown above.  That is, if there is "grave injury or danger to mental health" it would be shown in the form of woman committing suicide.  Otherwise, it could be presumed that there is no grave injury or danger to mental health and petty matrimonial spats cannot be classified under the tort of grave injury or danger to mental health.  Therefore accordingly, and may be wisely, the courts do not treat pt.no.1 and pt.no.5 as distinct elements of offence under S.498A.

 

However legal position is such that if gravity is lesser than the torture forcing woman to commit suicide, lesser period of punishment may be given to the accused. The courts however are of the view that for such matrimonial spats the relief could be in Family court in the form of Divorce under cruelty but it does not amount to cruelty under 498A. That is why in Sunita Jha v. State of Jharkhand,  the Supreme Court has declared that the mere fact of another women living with the husband does not entitle the wife to sustain the claim of cruelty against her in terms of Section 498A of the Indian Penal Code. At best, such fact could be a ground to claim divorce.

 

This is in a way giving direction to a woman to take recourse under HMA. The problem here is that a woman may not seek divorce when filing a case under S.498A.  Let us assume for argument sake, woman says, I have not married to take divorce, I want to live with him, you punish him, reform him in the jail and send him back to me as a reformed human being so that he does not behave like that in future with me.

 

Our punishments are not reformative punishments. And moreover, even if courts sentence a husband for three or four months instead of three years for mental cruelty (where women had not committed suicide) of lesser gravity obeying the legal position, the double jeopardy of husband losing his job for moral turpitude will be there waiting to spoil their matrimonial relationship.  Husband comes back as reformed person (let us assume we have somehow the reformative punishment in our jails and the convict comes back as reformed human being fit for a good rehabilitation and decent life), but our system is such that it does not allow him to live with dignity earning his livelihood.  He will be stripped of his job on the ground that conviction under 498A is within meaning of moral turpitude hence you are no more eligible to do job with us. 

 

How he can maintain his wife and relationship? 

 

That means, once 498A is filed the chapter of marriage in the book of husband and wife is presumed to be finished.  But what happens to the woman who do not want divorce but reformed husband? Does our system allow such possibility?  It should. Court has no business to suggest a woman, if mental cruelty is there and unless you commit suicide it cannot come under S.498A, hence you go to Family court and get divorce.  It is not the business of court to direct a woman as to what she should do. It is for her to choose what she wants.  If she wants that husband be punished and still accept him husband as reformed person, it is not any illegitimate demand that she makes from the criminal justice system.

 

The system should be geared up to meet her expectations rather than forcing her to think divorce is the only option.  The double jeopardy of punishing the offender who had undergone sentence by way of stripping him of job calling his act of offence as moral turpitude should be done away with.  If a wife has no objection to live with a man who indulged in act of moral turpitude what business the employer has to object employing a man indulged in moral turpitude?

 

Consistent with what is said above is the issue of making the offence of S.498A less draconian by making it bailable, non-cognizable and compoundable offence.  The police taking the family members of the accused to police station and keeping them in remand for questioning and detaining them in jail till they get bail causes irreparable damage to the relationship.  When one side courts stress the need for mediation and reconciliation and arrange for all kinds of mechanism to rectify the anamolies in marriage, other side, vitiating the atmosphere which is already spoiled with matrimonial spats further by way of arresting, questioning, detaining in prison till bail is granted and giving no scope for compromise between parties goes entirely against the spirit of reconciliation efforts made by courts at other level.

 

It may not be the path chosen by the complainant wife to close the doors for reconciliation but the system thrusts upon her to choose that path of divorce by way of making 498A non-bailable, cognizable and non-compoundable offence and further when the accused is sentenced indulging double jeopardy by inflicting greater punishment of  stripping of the accused from job for moral turpitude which in itself is meaningless because it is not for the system to vitiate the atmosphere and thrust upon a path which may not be a choice chosen by the complainant wife.

 

In a nutshell what all this means to a complainant wife is once she files a case under S.498a the path for reconciliation ends then and there itself, during the journey of proceedings the relationship is half killed and remaining half when the wife realizes that husband is no more a job holder if he is convicted.  This hopeless situation brings her to the conclusion that there is no way this relationship would flower again and hence the best course would be to put an end to it forever and search for greener pastures somewhere else in building some other relationship.  The question is, is it the path that wife consciously chooses or the path that is thrust on her by the draconian law?

 

If the law is earnest to keep the relationship alive and make reconciliation possible it should do everything earnestly so that the proceedings do not inject bitterness and cause irreparable damage to the relationship by way of arrest of husband and his relatives, detention till bail is granted by court, questioning by police etc.  All the same in many cases it is found that divorce proceedings under HMA run parallel to the criminal proceedings under 498a and there the court vouches for reconciliation and here the case is classified as non-compoundable.  It makes no sense.

 

 

There is a 16 month gap between the penultimate and the last post. Also there is deviation from the original post. Is it not time to close this and if someone wants, start a new one?