[Cites 21, Cited by 0]
Bombay High Court
Dr. Jerryl Avinash Banait vs State Of Maharashtra Thr. Principal ... on 17 December, 2025
2025:BHC-NAG:14441-DB
J-apl1351.19 final.odt 1/14
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
CRIMINAL APPLICATION (APL) No.1351 OF 2019
1. Nitin Dinkar Wakode,
Aged about 35 years,
Occupation : Service,
2. Dinkar Nibaji Wakode,
Aged about 64 years,
Occupation : Retired.
3. Kamal W/o. Dinkar Wakode,
Aged about 60 years,
Occupation : Household,
(All R/o. B-305, Vrindavan Apartments,
Station Road, Lalchakki, Ulhasnagar,
Thane, Tq. & Dist. Thane) : APPLICANTS
...VERSUS...
1. State of Maharashtra,
Through PSO Khamgaon City,
Tq. Khamgaon, District: Buldana.
2. Deepali Vijaykumar Wakode,
Aged about 31 years,
Occupation : Household,
R/o. Samanvay Nagar,
Behind Pandhari Baba Mandir,
Khamgaon, Tq. Khamgaon,
District : Buldana. : RESPONDENTS
=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=
Mr. Ved Deshpande, Advocate for Applicants.
Ms. Shamsi Haider, Additional Public Prosecutor for Respondent No.1.
None for Respondent No.2.
=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=
J-apl1351.19 final.odt 2/14
CORAM : URMILA JOSHI-PHALKE AND
NANDESH S. DESHPANDE, JJ.
RESERVED ON : 08th DECEMBER, 2025.
PRONOUNCED ON : 17th DECEMBER, 2025.
JUDGMENT :
(Per : Nandesh S. Deshpande, J.)
1. Heard. Admit. Heard finally by consent of learned
counsel appearing for the parties.
2. This is an application filed under Section 482 of the
Criminal Procedure Code seeking quashing of First Information
Report bearing No.581/2019, registered at Police Station
Khamgaon City, District Buldhana against the applicants for the
offences punishable under Sections 498A, 323, 504, 506 read with
Section 34 of the Indian Penal Code.
3. As per the averments in the application, the applicants
have been arrayed as accused in the said crime which is registered
on the basis of complaint lodged by non-applicant No.2 alleging
therein that she got married with applicant No.1 on 13.1.2019 and
thereafter started residing with applicants at Ambarnath, District
Thane. The applicant No.1 is the husband, while applicant Nos.2
and 3 are the father-in-law and mother-in-law respectively of the
applicant No.2. It is further alleged in the First Information Report
that at the time of marriage father of the non-applicant No.2 gave
an amount to the tune of Rs.71,000/- as "Var-dakshina" to the
applicant No.1 along with golden chain and other ornaments. It is
further alleged in the First Information Report that the non-
applicant No.2 was treated well for 7 to 8 days, but the marriage
between the applicant No.1 and the non-applicant No.2 did not
consummate since the husband was used to be high after
consuming certain medicines.
4. It is further stated in the First Information Report that
when non-applicant No.2 revealed the same to the applicant Nos.2
and 3 and other accused, they asked her to keep mum about the
fact. It was thereafter realized by the non-applicant No.2 that the
applicant No.1 is undergoing treatment and when inquired from the
said concerned doctor, she came to know that her husband was
incapable of having physical relations with her. The non-applicant
No.2 further alleges in the First Information Report that when
confronted, the applicant No.3 beat the non-applicant No.2 and she
was driven out of her matrimonial house on 24.9.2019. The
complaints were filed thereafter before the Woman's Grievance
Cell, Khamgaon. However, no settlement was arrived between
them. Based on the above mentioned allegations First Information
Report came to be lodged on 26.11.2019 as stated above. It is this
First Information Report which is challenged in the present
application.
5. We have heard Mr. Ved Deshpande, learned counsel
for the applicants and Ms. Shamsi Haider, learned Additional Public
Prosecutor for the respondent No.1. Nobody appears for
respondent No.2 in spite of service.
6. Learned counsel for the applicants submits that the
allegations regarding impotency of the applicant No.1 are nothing
but falsehood since he is a patient of depression and is being
treated therefor. He took us through the medical reports filed with
the application to buttress his submission. On the ground of
ill-treatment, learned counsel for the applicants submits that the
allegations are lacking material particulars apart from they being
false. He submits that the applicants have been roped in only to
harass the family. He further submits that during the pendency of
the present application, the non-applicant No.2 had filed a Hindu
Marriage Petition No.3/2022, under Section 13 of the Hindu
Marriage Act, before the Civil Judge, Senior Division, Akola, which
is decided on 2.5.2023. By taking us through the judgment in the
said Petition, learned counsel for the applicants submits that
divorce has been granted thereby dissolving the marriage between
the applicant No.1 and non-applicant No.2. He, therefore, prays
that the First Information Report in question needs to be quashed as
no case of cruelty as contemplated under Section 498A of the
Indian Penal Code is made out against the applicants. He relies on
a Judgment of Manju Ram Kalita, reported in (2009) 13 SCC 330,
Vishwanath Agrawal s/o. Sitaram Agrawal Vs. Sarla Vishwanath
Agrawal, reported in (2012) 7 SCC 288 and the judgment of the
Karnataka High Court in Criminal Petition No.7067/2021 (Aiyappa
M.B. and others Vs. The State of Karnataka and another).
7. Per contra, learned Additional Public Prosecutor for the
respondent No.1 submits that the allegations of impotency and
mental cruelty are made out against the applicants. She submits
that there are enough particulars to make out a prima facie case
against the applicants for facing them the trial. Nobody appears for
respondent No.2 though served.
8. In the backdrop of these facts, we have carefully
perused the First Information Report in question as also the
judgment of the Family Court. The said First Information Report
ropes in total 10 accused which includes the family members of the
applicant No.1 including his in-laws, brothers, sisters etc. As far as
applicant Nos.2 and 3 are concerned, a deeper perusal of the First
Information Report in question would reveal that the allegations
against them are totally vague in nature since no material
particulars as required in law are spelt out in the said First
Information Report. Furthermore, as far as the allegations against
the applicant No.1 are concerned, the same are also vague in nature
since the allegations seems to be normal wear and tear in the
matrimonial life and not cruelty as contemplated under Section
498A of the Indian Penal Code. Now a days, it has become a
tendency to rope in all members of the family of the husband and
Court is now flooded with such type of matrimonial litigation.
Section 498A of the Indian Penal Code reads as under :
"498-A. 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."
9. The growing tendency is seen now a days in Society to
make inflated allegations against the family members and to
somehow implicate them in criminal trial. The Hon'ble Supreme
Court as also this Court has time and again cautioned about this
growing tendency. A beneficial reference can be made in this
regard to the judgment of the Hon'ble Supreme Court in the case of
Kahkashan Kausar @ Sonam Vs. The State of Bihar, reported in
(2022) 6 SCC 599, wherein the Hon'ble Apex Court observed as
under :
"The above-mentioned decisions clearly
demonstrate that this Court has at numerous
instances expressed concern over the misuse of
Section 498A of the Indian Penal Code and the
increased tendency of implicating relatives of the
husband in matrimonial disputes, without
analysing the long term ramifications of a trial on
the complainant as well as the accused. It is
further manifest from the said judgment that false
implication by way of general omnibus allegations
made in the course of matrimonial dispute, if left
unchecked would result in misuse of the process
of law. Therefore, this Court by way of judgment
has warned the courts from proceeding against
the relatives and in-laws of the husband when no
prima facie case is made out against them."
10. Learned counsel for the applicants has placed reliance
on a judgment of Vishwanath Agrawal s/o. Sitaram Agrawal Vs.
Sarla Vishwanath Agrawal, reported in (2012) 7 SCC 288 wherein
para 22,23 and 24 the Hon'ble Supreme Court has observed as
under :
22. The expression 'cruelty' has an inseparable
nexus with human conduct or human behaviour. It is
always dependent upon the social strata or the milieu
to which the parties belong, their ways of life,
relationship, temperaments and emotions that have
been conditioned by their social status.
23. In Sirajmohamedkhan Janmohamedkhan
v. Hafizunnisa Yasinkhan a two-Judge Bench
approved the concept of legal cruelty as expounded
in Pancho v. Ram Prasad wherein it was stated thus :
"3..............Conception of legal cruelty
undergoes changes according to the changes and
advancement of social concept and standards of
living. With the advancement of our social
conceptions, this feature has obtained legislative
recognition that a second marriage is a sufficient
ground for separate residence and separate
maintenance. Moreover, to establish legal cruelty, it
is not necessary that physical violence should be
used.
Continuous ill-treatment, cessation of marital
intercourse, studied neglect, indifference on the part
of the husband, and an assertion on the part of the
husband that the wife is unchaste are all factors
which may undermine the health of a wife."
It is apt to note here that the said observations
were made while dealing with the Hindu Married
Women's Right to Separate Residence and
Maintenance Act (19 of 1946). This Court, after
reproducing the passage, has observed that the
learned Judge has put his finger on the correct aspect
and object of mental cruelty.
24. In Shobha Rani v. Madhukar Reddi, while
dealing with 'cruelty' under Section 13(1)(ia) of the
Act, this Court observed that the said provision does
not define 'cruelty' and the same could not be
defined. "Cruelty" may be mental or physical,
intentional or unintentional. If it is physical, the
Court will have no problem to determine it. It is a
question of fact and degree. If it is mental, the
problem presents difficulty. Thereafter, the Bench
proceeded to state as follows :
"4..........First, the enquiry must begin as to the
nature of the cruel treatment. Second, the impact of
such treatment on the mind of the spouse. Whether it
caused reasonable apprehension that it would be
harmful or injurious to live with the other.
Ultimately, it is a matter of inference to be drawn by
taking into account the nature of the conduct and its
effect on the complaining spouse. There may,
however, be cases where the conduct complained of
itself is bad enough and per se unlawful or illegal.
Then the impact or the injurious effect on the other
spouse need not be enquired into or considered. In
such cases, the cruelty will be established if the
conduct itself is proved or admitted."
11. Furthermore, the counsel for the applicant has also
relied the judgment in the case of Manju Ram Kalita Vs. State of
Assam, reported in (2009) 13 SCC 330, the relevant portion are
re-produced as under :
16. In V. Bhagat v. Mrs. D. Bhagat, this court, while
dealing with the issue of cruelty in the context of
Section 13 of the Hindu Marriage Act, observed as
under :
"16..........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.
J-apl1351.19 final.odt 10/14
17......18...... 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........."
17. In Monhd. Hoshan v. State of A.P., 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 : (SCC p.418, para 6)
"6. 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."
18. In Raj Rani v. State (Delhi Admn.) 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.
19. In Sushil Kumar Sharma vs. Union of India, 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
J-apl1351.19 final.odt 11/14
abated and intended. Therefore, there is a basic
difference of the intention in application of the said
provisions.
20. In Girdhar Shankar Tawade vs. State of
Maharashtra, 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.
21. "Cruelty" for the purpose of Section 498-A I.P.C.
is to be established in the context of Section
498A 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 498A IPC. Causing mental
torture to the extent that it becomes unbearable may
be termed as cruelty.
12. The counsel for applicants has further relied on
judgment of the Hon'ble Single Judge of the High Court of
Karnataka in Criminal Petition No.7067/2021. Para No.15
reproduced as under :
15. Insofar as the husband/1st petitioner is
concerned, the complaint narrates several grievances
and those grievances are trivial in nature. It is the
averment that the complainant knew about the
attitude of the husband. Even then, she gets
married due to the force of elders of the family
thinking that the husband would become alright and
stayed only for 28 days in the matrimonial house. In
J-apl1351.19 final.odt 12/14
those 28 days, neither the complaint nor the
summary charge sheet narrates any factum/incident
that would become an ingredient of Section 498A of
the IPC. The only allegation is that, he is a follower
of Brahmakumari; always was watching videos of
one sister Shivani, a Brahmakumari; gets inspired by
watching those videos, always told that love is never
getting physical, it should be soul to soul. On this
score, he never intended to have physical
relationship with his wife. This would undoubtedly
amount to cruelty due to non-consummation of
marriage under Section 12(1)(a) of the Hindu
Marriage Act and not cruelty as is defined under
Section 498A of the IPC. It is on the basis of such
cruelty a decree of divorce is granted to the
complainant and on the same basis, criminal
proceedings cannot be permitted to be continued.
Finding no ingredient even against the husband, the
proceedings if permitted to continue would
degenerate into harassment, become an abuse of the
process of law and ultimately result in miscarriage of
justice."
13. When we are adjudicating this application, we are not
oblivious of judgment of this Court report in
MANU/MH/8166/2024, wherein Criminal Application
No.2050/2023, Meer Akbar Ali and others Vs. The State of
Maharashtra and others, a co-ordinate Bench of this Court in
somewhat identical situation held that the prosecution under
Section 498A would not be sustainable for the overt act for the
ill-treatment caused after dissolution of marriage, but it would be
maintainable when the ill-treatment has been caused when the
J-apl1351.19 final.odt 13/14
marriage was subsisting. We are in agreement with the said
proposition, however, we are deciding the present matter on merits
of the case since according to us the allegations made in the First
Information Report which is challenged in the present application
do not meet the necessary requirement for attracting the offence
punishable under Section 498A of the Criminal Procedure Code.
14. Furthermore, we cannot loose site of the fact that the
marriage between the parties is already dissolved by the competent
Court even though the same was un-contested and as stated by the
counsel for the applicant, the same has not been challenged. Thus,
the husband i.e. applicant No.1 herein has accepted the said
judgment. Furthermore, we cannot shut our eyes to the fact that in
the present case also the non-applicant No.2 has chosen not to
appear in spite of she being served with the notice. Thus, it seems
that the parties to the matter have decided to end the matrimonial
ties once for all. Thus, in the above set of facts the chances of
conviction in the criminal prosecution are very bleak. This is apart
from the fact that the allegations levelled against the applicants are
vague and omnibus in nature lacking in material particulars as
stated above. We, therefore, find this is a fit case to exercise
jurisdiction under Section 482 of the Criminal Procedure Code as
J-apl1351.19 final.odt 14/14
quashing of the First Information Report would secure ends of
justice. We, therefore, pass the following order :
ORDER
(i) The application is allowed.
(ii) The First Information Report bearing
No.581/2019, registered with Police Station Khamgaon City,
District Buldhana against the applicants for the offences punishable
under Sections 498A, 323, 504, 506 read with Section 34 of the
Indian Penal Code is quashed and set aside to the extent of the
applicants, namely, (1) Nitin Dinkar Wakode, (2) Dinkar Nibaji
Wakode, (3) Kamal W/o. Dinkar Wakode.
(iii) The application is disposed of.
(Nandesh S. Deshpande, J.) (Urmila Joshi-Phalke, J.)
wadode
Signed by: Mr. Devendra Wadode
Designation: PS To Honourable Judge
Date: 18/12/2025 10:57:50
