Jharkhand High Court
Zabbar Ansari Son Of Rafique ... vs The State Of Jharkhand on 23 July, 2021
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr. Rev. No.1114 of 2013
Zabbar Ansari son of Rafique Ansari, resident of Village-
Manjhaul, P.O. & P.S.-Hussainabad, District - Chatra
... ... Petitioner
-Versus-
1. The State of Jharkhand
2. Shahjadi Khatoon W/o Zabbar Ansari, D/o Ajamatullaha
Ansari, resident of village-Belbigha, P.S.+P.O.- Hussainabad,
District-Palamu ... ...Opposite Parties
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CORAM: HON'BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY
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For the Petitioner : Mr. Rahul Dev, Advocate
For the Opp. Party-State : Mr. Azeemuddin, A.P.P.
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Through Video Conferencing
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13/23.07.2021 Heard Mr. Rahul Dev, the learned counsel appearing on
behalf of the petitioner.
2. Heard Mr. Azeemuddin, the learned A.P.P. appearing on
behalf of the Opposite Party-State.
3. From perusal of the judgment of the learned trial court, it
appears that there were altogether six accused persons
including the petitioner and his second wife and other family
members. The learned Sub-Divisional Judicial Magistrate,
Palamau at Daltonganj vide Judgment dated 09.01.2006 passed
in Trial No. 1282/05/1019/06 (arising out of Complaint Case
No. 554 of 1998) acquitted other accused by giving the benefit
of doubt and convicted the sole petitioner (husband of the
complainant) for the offence punishable under Section 498A of
the Indian Penal Code and sentenced him to undergo rigorous
imprisonment for two years and fine of Rs. 500/- and in default
of payment of fine amount, to serve further rigorous
imprisonment for 10 days.
4. The sole convict filed appeal before the learned appellate
court in which the learned Additional Sessions Judge-VII,
Palamau at Daltonganj, vide Judgment dated 30.09.2013 passed
in Cr. Appeal No. 06 of 2006, dismissed the appeal and affirmed
the judgment of conviction and the order of sentence dated
09.01.2006 passed by the learned trial court and thereafter, the
petitioner has filed the present criminal revision against the
judgment of the learned appellate court.
Arguments on behalf of the petitioner
5. Learned counsel for the petitioner submitted that the
conviction and sentence of the petitioner for the offence under
Section 498A of the Indian Penal Code cannot be sustained in
the eyes of law. He further submitted that there is no allegation
of any demand of dowry or property from the petitioner even
as per the complainant and accordingly, the nature of cruelty
does not fall within Explanation (b) of Section 498A of the
Indian Penal Code. The learned counsel further submitted that
so far as Explanation (a) of Section 498A of the Indian Penal
Code is concerned, the allegation levelled against the petitioner
is only to the extent that the petitioner solemnized second
marriage with Mehnaz Bibi and on account of birth of two girl
babies to the Opposite Party No. 2, the petitioner did not
maintain her properly and she was ultimately ousted from her
matrimonial house. He also submitted that the marriage had
taken place on 13.07.1983 and after 11 years of marriage, the
complaint was filed in the year 1998, but as per the case of the
complainant herself, prior to filing of the complaint case, she
was living with her parents for the last three years.
6. The learned counsel for the petitioner further submitted
that both the learned courts below have not recorded any
finding regarding the nature of cruelty so as to bring charge
within the meaning of Explanation (a) to Section 498A of the
Indian Penal code.
7. Learned counsel for the petitioner relied upon the
judgments passed by the Hon'ble Supreme Court in the cases of
Manju Ram Kalita -vs- State of Assam (2009) 13 SCC 330, Smt.
Raj Rani -vs- State (Delhi Administration) AIR 2000 SC 3559
and Girdhar Shankar Tawade -vs- State of Maharashtra AIR
2002 SC 2078. The learned counsel submitted that in the case of
Girdhar Shankar Tawade, it has been held that in order to bring
the act within the term 'cruelty', there should be a continuous
state of affairs of torture by one to another. The learned counsel
submitted that the acts and omissions of the petitioner do not
come within the term 'cruelty' as defined in Explanation (a) of
Section 498A the Indian Penal Code and therefore, in the
present case, the impugned judgment suffers from perversity
and error of law.
Arguments on behalf of the Opposite Party-State
8. The learned counsel for the Opposite Party-State, on the
other hand, while opposing the prayer submitted that the
learned courts below have given concurrent finding of facts and
have found the petitioner guilty for the offence under Section
498A of the Indian Penal Code. He also submitted that one
affidavit was also sworn by the petitioner that he would keep
the Opposite Party No.2 properly, which has been exhibited
before the learned trial court as Exhibit-1. He submitted that a
Panchayati was also held to ensure that the Opposite Party No. 2
is maintained properly by the petitioner and document in
connection with the same has also been exhibited before the
learned trial court as Exhibit-2, but in spite of clear undertaking
given by the petitioner to maintain the Opposite Party No. 2
properly, he did not abide by his undertaking. The learned
counsel submitted that the very fact that the petitioner
solemnized second marriage after birth of two girl babies itself
is sufficient to constitute the offence under Section 498A of the
Indian Penal Code and as such, the act on the part of the
petitioner amounts to cruelty within the meaning of Section
498A of the Indian Penal Code.
9. The learned counsel for the Opposite Party-State further
submitted that the complainant has also deposed that the
petitioner had assaulted her and after the assault, she was
thrown out of her matrimonial house. However, during the
course of hearing, he did not dispute the fact that there is no
allegation of any demand of dowry or property involved in the
present case and also the fact that the Opposite Party No.2 had
filed the complaint case after about three years after she was
ousted from her matrimonial house. He also did not dispute
that the complaint itself was filed after 11 years from the date of
marriage.
Findings of this Court
10. The point to be considered in the present case is-
Whether, torture of the complainant on account of giving
birth to two girl child and not giving birth to a male
child, coupled with not providing food and medicine to
the complainant and her ultimate ouster from the
matrimonial house upon assault by the petitioner
husband within a few days from the date of second
marriage by the petitioner, would amount to cruelty
under clause (a) of explanation to section 498A of Indian
Penal Code?
11. As per the allegations, the marriage of the complainant
namely, Shahjadi Khatoon was solemnized with the accused-
Zabbar Ansari (petitioner herein) as per Muslim Rites and
Rituals at Rs. 25,000/- as 'Den Mehar' about 11 years ago and
the complainant used to live with the petitioner as husband and
wife and as a result of their wedlock, two daughters namely,
Sabnam Sagufta and Shama Parveen were born but after birth
of the two daughters the behaviour of her in-laws changed
towards the complainant and they did not provide food and
medicine to her. It was further case of the complainant that
about three years prior to filing of the case, the petitioner after
second marriage ousted the complainant after assaulting her
and snatching her articles. It was also the case of the
Complainant that Panchayati was convened, but it did not
affect the nature and behaviour of the petitioner and thereafter
the complaint was filed.
12. After enquiry, a prima-facie case under Section 498A of the
Indian Penal Code was found to be made out against the
accused persons and after appearance of all the accused
persons, the evidence before charge was recorded and on the
basis of the same, the charge under Section 498A of the Indian
Penal Code was framed against all the accused persons on
20.04.2001 which was read over and explained to them in Hindi
to which they pleaded not guilty and claimed to be tried.
13. In course of trial, four witnesses were examined on behalf
of the complainant to substantiate the charges. P.W.-1 is
Kuddus Ansari, P.W.-2 is Karar Ansari, P.W.-3 is Shahjadi
Khatoon who is the Complainant herself and P.W.-4 is
Ramashankar Chaudhary. The complainant exhibited various
documents in support of her case. Exhibit-1 is the affidavit
dated 07.04.1997 sworn by the petitioner and Exhibit-2 is the
panchnama.
14. On 12.09.2002, the statements of the accused persons
including the petitioner were recorded under Section 313 of
Cr.P.C. wherein the petitioner simply denied the incriminating
evidences put to him.
15. Thereafter, five witnesses were examined on behalf of the
accused persons in their defence. D.W.-1 is Sita Ram Paswan,
D.W.-2 is Muralidhar Singh and D.Ws.-3, 4 and 5 namely,
Abdul Jalil, Kamaru Bhuiyan and Md. Kutubuddin are the
formal witnesses who exhibited one Nikah Register as Exhibit-
A. Exhibit-B is a Certificate dated 16.12.2003 granted by the Sr.
Personal Officer, Karkatta Project of Central Coalfields Limited
and Exhibit-C is a certificate of the Sarpanch.
16. Before the learned trial court, the defence took the plea
that the accused persons are innocent and they have not
committed any offence and also took the plea that the
petitioner-husband was ready to keep the complainant, but she
was not ready to live with the petitioner and that the
complainant has also solemnized second marriage with one
Kuddus Ansari and has left the house of the petitioner with her
own sweet will. The other accused persons, except the present
petitioner, took the plea that they have no concern with the
family matter of the petitioner namely, Zabbar Ansari.
17. After scrutinizing the materials available on record, the
learned trial court recorded that the most important witness of
the case is the complainant/victim-Shahjadi Khatoon who has
been examined as P.W.-3 who had supported the complaint.
18. P.W.-1 is Kuddus Ansari who stated in his examination-
in-chief that the marriage of the complainant was solemnized
with the petitioner about 13 to 14 years ago and till 5 to 6 years
of marriage, their relation was normal and the complainant
gave birth to two daughters and thereafter, the petitioner
started to assault the complainant for which the complainant
had filed a case which was compromised, but even after the
compromise, her husband and his family members drove out
her after assaulting her and the petitioner performed second
marriage. P.W.-2 is the Karar Ansari. The learned trial court
found that this witness stated the same thing as P.W.-1.
P.W.-4 is Ramashankar Chaudhary who was the member of
Panchayat and he admitted that he knew both the parties and
further admitted that due to dispute between the complainant
and the petitioner, one Panchayati was convened. He also
stated that the petitioner wanted to leave the complainant and
for that, it was settled in the Panchayati that the petitioner
should pay about Rs. 48,000/- to the complainant for
maintenance of her and her daughters. He also admitted that
the petitioner was living at Japla with his two wives, but after
one month, he drove out the complainant after assaulting her.
19. The learned trial court found that all the four witnesses
examined on behalf of the Complainant have supported the
facts mentioned in the complaint petition and also found that
the evidences of these witnesses corroborated the evidence of
each other in their cross-examination.
20. The learned trial court further recorded that the defence
has also produced many witnesses, considered their evidences
in details and recorded that from scrutinizing the evidences of
defence witnesses and also exhibits, it is clear that defence has
tried his best to shake the evidence of the complainant, but
failed to do so. However , the learned trial court recorded that
there was very weak evidences on the record against the other
accused persons except the petitioner in the commission of
assault or torturing to the complainant. The learned trial court
acquitted the other accused and convicted the petitioner only.
21. The learned trial court while convicting the petitioner,
inter alia, recorded that so far as the involvement of petitioner
in the occurrence is concerned, the evidences available on
record are consistent that he used to assault the complainant
and he drove her out from her in-laws' house. From Exhibit-1
which is an affidavit executed by the petitioner on 07.04.1997, it
is clear that he admitted that due to some unavoidable facts,
relation of his conjugal life with the complainant became
strained and his wife started living in her parental house with
her widow mother and during last three years, he did not
provide any facility regarding food and clothes to her wife and
daughters. His community persons several times tried to
convince him to restore the relation, for which one panchayati
was also convened and he assured her wife that he will keep
her alongwith her children very smoothly and gently and will
never neglect them in future by swearing an affidavit, but even
after that, he did not change his behaviour which is apparent
from the panchayatnama dated 03.09.1997 (Ext.-2) and the fact
of panchnama and affidavit has also been corroborated by the
evidence of P.W.-4.
22. After scrutinizing all the evidences on record, the learned
trial court summarized its findings in Paras-16 and 17 which
read as under:
"16. After considering all the facts and circumstances of the
case as well as the evidences available on the record and also
keeping in view of the argument advanced by the learned
counsel of the parties, I am of the view that that accused-Zabbar
Ansari, the husband of the complainant, used to assault the
complainant after birth of two daughters of the complainant
and ousted her from her in-laws' house and deserted her, which
is sufficient to constitute the offence of torturing u/s 498(A) of
the I.P.C.
17. So, I find and hold that the complainant party has been
successfully bring home the charge U/s 498A IPC against the
husband/accused Zabbar Ansari beyond the shadow of even all
reasonable and probable doubts, but at the same time, I also find
and hold that the complainant party has failed to prove the
charge against the other accused persons,
namely, ..............................................."
23. Accordingly, the learned trial court convicted the
petitioner for offence under Section 498A of the Indian Penal
Code and sentenced him.
24. The learned appellate court also scrutinized all the oral
and documentary evidences on record and was of the view that
the complainant has successfully established her case beyond
all reasonable doubts and held that the learned trial court has
rightly passed the impugned judgment. The learned appellate
court affirmed the judgment of conviction and dismissed the
appeal.
25. The learned appellate court was also conscious of the fact
that no allegation has been made by the complainant regarding
demand of dowry. However, upon scrutinizing the evidences
on record upheld the conviction of the petitioner for offence
under section 498A IPC and was of the considered view that the
complainant has been able to prove the case against the
petitioner beyond all reasonable doubts. The evidences on
record have been threadbare considered and discussed in
impugned judgement particularly, para 7 thereof.
26. There is no dispute that there are concurrent findings of
both the courts below while convicting the petitioner under
section 498A of IPC.
27. Learned counsel for the petitioner has heavily relied upon
the judgment passed by the Hon'ble Supreme Court reported in
(2009) 13 SCC 330 (Manju Ram Kalita vs. State of
Assam) ,Para-12 to 28 .
28. While dealing with clause (a) of Explanation to Section
498A of the Indian Penal Code, in the judgment passed in the
case of Manju Ram Kalita (Supra), para 14, the elements of
cruelty for the purposes of clause (a) has 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 woman or
(iii) any "wilful" act which is likely to cause danger to life,
limb or health, whether physical or mental of the woman.
29. The Hon'ble Supreme Court further held in para 21 that-
- the concept of cruelty for the purpose of section 498-A
has to be seen in the context of the said section as it may
be different from other statutory provisions.
- It is to be determined/inferred by considering the
conduct of the man, weighing the gravity or seriousness
of his acts and to find out 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. Causing mental torture to
the extent that it becomes unbearable may be termed as
cruelty.
30. The Hon'ble supreme court in Manju Ram Kalita (supra)
found that mental and physical torture of the lady was not
continuous as there was no complaint against the husband
between 1993 to 1997 and that the learned trial court itself was
of the view that there was no evidence of cruelty on the part of
the husband with a view to drive the complainant to commit
suicide and in such circumstances the Hon'ble Supreme court
acquitted the appellant for offence under section 498-A of IPC.
Admittedly the case was considered under clause (a) of the
explanation to section 498-A IPC as there was no demand of
dowry involved in the said case.
31. In the judgment of the Hon'ble Supreme Court reported
in (2019) 5 SCC 384 (Rupali Devi vs. State of Uttar Pradesh and
Others), the term cruelty, for offence under Section 498A has
been considered. It has been held by the Hon'ble Supreme
Court in Para-14 that the impact on the mental health of the
wife by overt act on the part of the husband or his relatives; the
mental stress and trauma of being driven away from
matrimonial house and her helplessness to go back to the same
home for fear of being ill-treated are the aspects which cannot
be ignored while understanding the meaning of the expression
"cruelty" appearing in Section 498A of the Indian Penal Code.
The emotional distress or psychological effect on the wife, if not
the physical injury, is bound to continue to traumatize the wife
even after she leaves the matrimonial home and takes shelter at
the parental house. The Hon'ble Supreme Court in the said
judgment has also held that provision contained in Section
498A IPC undoubtedly encompass both mental as well as
physical well-being of the wife. Even the silence of the wife may
have an underlying element of an emotional distress and
mental agony. Her suffering at the parental home though may
be directly attributable to commission of an act of cruelty by the
husband at the matrimonial home would, undoubtedly be the
consequence of the acts committed at the matrimonial home.
32. This Court finds that in the instant case admittedly there
is no allegation of demand of any dowry or any property and
therefore this case is to be considered in the light of the
definition of cruelty as defined under clause (a) to the
explanation to section 498A of IPC whose ingredients has been
considered in the aforesaid two judgements of the Hon'ble
Supreme Court.
33. In the present case, the complainant was subjected to
cruelty on account of giving birth to two daughters, as no male
child was born out of the wedlock. The complainant had lived
happily at her matrimonial home for 5 to 6 years, but when no
male child was born, she was subjected to torture and no food
and medicine was provided to her; the petitioner performed
second marriage about three years prior to filing of the
complaint case and soon after second marriage ousted the
complainant from her matrimonial house by assaulting her. The
learned courts below have recorded consistent finding
regarding the aforesaid reason for her torture and her ouster
from her matrimonial house. It has also come on record that
there were efforts for settlement and the petitioner had also
sworn affidavit dated 07.04.1997 (exhibit-1) and in spite of
settlement arrived at in the panchayati leading to execution of
panchyatnama dated 03.09.1997 (exhibit-2), the petitioner did
not honour his commitment and ultimately, the complainant
was left with no option, but to file the complaint case in the
year 1998.
34. This Court is of the considered view that torture of a
woman for not giving birth to a male child coupled with denial
of food and medicine, etc. at her matrimonial home followed
with performance of second marriage and assaulting the
complainant and throwing out her out of the matrimonial
house within a short period of 15-16 days from the date of
second marriage of the petitioner is sufficient mental and
physical cruelty with emotional distress and mental agony to
bring home the charge for offence under Section 498A of the
Indian Penal Code when read with the definition of cruelty
under explanation (a) to section 498A IPC.
35. This Court finds that both the learned court below have
carefully scrutinized the materials on record and have found
the petitioner guilty of offence under Section 498A of the Indian
Penal Code. This Court also finds that the learned appellate
court has specifically recorded that there was no demand of
dowry from the side of the petitioner, but was of the view that
the cruelty meted out to the complainant was sufficient to
convict the petitioner for the offence under Section 498A of the
Indian Penal Code. This Court finds that the view taken by the
learned courts below while convicting the petitioner for offence
under Section 498A of the Indian Penal Code do not suffer from
any illegality or perversity calling for any interference in
revisional jurisdiction. Considering the limited scope for
interference in revisional jurisdiction, this Court does not find
any reason to interfere with the impugned judgments and
hence this revision petition is dismissed.
36. So far as the other judgment relied upon by the petitioner
reported in AIR 2000 SC 3559 (Smt. Raj Rani vs. State (Delhi
Administration) is concerned, in that case the wife had
committed suicide by leaving a suicide note that her husband
was addicted to Narcotic drugs and no concrete instance was
stated by the wife which could be termed as cruelty as against
the appellant - sister-in-law. It has been held in Para-5 of the
said judgement that the allegations of hurt through words must
be subjected to judicial scrutiny and the Court must be in a
position to hold that those words were sufficiently hurting
enough as to amount to "cruelty" falling within the parameters
fixed in Section 498A IPC. The areas remain grey and vague.
The Hon'ble Supreme Court allowed the appeal filed by the
sister-in-law holding that not a single word said to have been
spoken to by the sister-in-law as against the deceased had been
put on record by the deceased in the suicide note.
37. There is no doubt that the allegations of cruelty have to
pass the judicial scrutiny before a person can be held to be
guilty under section 498-A of IPC. In view of the findings
recorded above, this court is of the considered view that judicial
scrutiny with regards to the allegations vis-à-vis ingredients of
section 498 A has been rightly done by the learned courts
below while convicting the petitioner for offence under section
498-A IPC.
38. The other judgment which has been relied upon by the
petitioner is AIR 2002 SC 2078 (Girdhar Shankar Tawade vs.
State of Maharashtra). In the said case, it has been held that
there was a clear finding by the trial court and affirmed by the
High Court that the death was an accidental death and not
suicide and the court was of the view that under such
circumstances Explanation (a) to Section 498A would not apply.
It has been held that in any event the willful act of conduct
ought to be the proximate cause in order to bring home the
charge under Section 498A and not de-hors the same. It has also
been held that to have an event some time back cannot be
termed to be a factum taken note of in the matter of a charge
under Section 498A.
39. In the instant case, the delay, if any, in filing the
complainant is well explained. The complainant was ousted
from her matrimonial house about three years prior to filing of
the complaint case. Thereafter efforts were made for
settlement and the petitioner had also sworn affidavit dated
07.04.1997 (exhibit-1) and in spite of settlement arrived at in the
panchayati leading to execution of panchyatnama dated
03.09.1997 (exhibit-2), the petitioner did not honour his
commitment and ultimately, the complainant was left with no
option, but to file the complaint case in the year 1998.
40. This court finds that the basic ingredients of offence
under section 498A is well proved when seen in the light of the
aforementioned judicial pronouncements and no illegality or
perversity has been committed by the learned courts below
while passing the impugned judgements.
41. As a cumulative effect of the aforesaid findings, the point
formulated in para 10 of this judgement is answered in
affirmative. Consequently, the conviction and sentence of the
petitioner under Section 498A of the Indian Penal Code passed
by the learned trial court and affirmed by the learned appellate
court is upheld and this criminal revision petition is hereby
dismissed.
42. Interim order, if any, stands vacated.
43. The bail bond furnished by the petitioner is cancelled.
44. Pending interlocutory application, if any, is dismissed as
not pressed.
45. Let the Lower Court Records be immediately sent back to
the court concerned.
46. Let a copy of this order be communicated to the learned
court below through "FAX/Email".
(Anubha Rawat Choudhary, J.)
Binit/Mukul
