Karnataka High Court
Sudhir Madhav Pai vs The State Of Karnataka on 22 January, 2025
Author: M.Nagaprasanna
Bench: M.Nagaprasanna
1
Reserved on : 06.01.2025
Pronounced on : 22.01.2025
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 22ND DAY OF JANUARY, 2025
BEFORE
THE HON'BLE MR. JUSTICE M. NAGAPRASANNA
WRIT PETITION No.3809 OF 2024 (GM - RES)
C/W
WRIT PETITION No.28591 OF 2023 (GM - RES)
IN WRIT PETITION No.3809 OF 2024
BETWEEN:
1. SMT. SHREYA S. PAI @ CHANDRIKA KAMAT
AGED ABOUT 42 YEARS,
W/O MR. SUHIR M. PAI,
D/O LAXMAN R.KAMAT,
R/O NO. A204,
RMZ LATITUDE, BELLARY ROAD,
AMRUTAHALLI, HEBBAL
BENGALURU - 560 092.
2. SMT. BHAGAVATHI,
AGED ABOUT 69 YEARS,
W/O LAXMAN R. KAMAT,
R/O SRI RANGA,
NO.4/4, CRESCENT ROAD,
GOLF GROUNDS, HIGH GROUNDS,
BENGALURU NORTH,
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BENGALURU - 560 001.
3. SRI. LAXMAN R. KAMAT,
AGED ABOUT 72 YEARS,
S/O RANGAPPA P. KAMAT,
RESIDENT OF 4/4, SRI RANGA,
CRESCENT ROAD,
GOLF GROUND, HIGH GROUNDS,
BENGALURU - 560 001.
... PETITIONERS
(BY SMT.JAINA KOTARI, SENIOR ADVOCATE FOR
SRI ARPAN B.PATTANASHETTI, ADVOCATE)
AND:
1. THE STATE OF KARNATAKA
BY MANGALORE EAST POLICE STATION,
BEJAI MAIN ROAD, BEJAI,
MANGALURU, KARNATAKA - 575 004.
REPRESENTED BY THE POLICE INSPECTOR.
2. THE INVESTIGATION OFFICER
MANGALORE EAST POLICE STATION,
BEJAI MAIN ROAD, BEJAI,
MANGALORE,
KARNATAKA - 575 004.
3. SRI. SUDHIR M. PAI,
AGED ABOUT 47 YEARS,
S/O SRI. MADHAV PAI
RESIDENT OF BHARATH BAGH,
KADRI ROAD,
BHARATH BEEDI WORKS PVT. LTD.,
KODIALBAIL MANGALORE, D.K.,
KARNATAKA - 575 003
... RESPONDENTS
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(BY SRI B.N.JAGADEESHA, ADDL.SPP FOR R-1 AND R-2
SRI SANDESH S CHOUTA, SR.ADVOCATE FOR SRI AKASH
B.SHETTI, ADVOCATE FOR R-3)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND
227 OF THE CONSTITUTION OF INDIA READ WITH SECTION 482 OF
CR.P.C., PRAYING TO QUASH THE FOLLOWING FIR NO. 0176/2023
OF MANGALORE EAST POLICE STATION UNDER SECTIONS IPC
1860 (U/S-420, 406, 403, 109, 384, 34) DTD 25.11.2023 FILED
AGAINST P-1 AND P-2 AS MENTIONED IN ANNEXURE-A; ISSUE A
WRIT OF MANDAMUS TO THE RESPONDENT AUTHORITIES NOT TO
ACT AGAINST ANY FRIVOLOUS COMPLAINT NOR ANY FIR TO BE
REGISTERED BY THE POLICE ON THE SAME CAUSE OF ACTION AS
IN THE INSTANT W.P.; ISSUE A WRIT OF MANDAMUS DIRECTING
THE STATE OF KARNATAKA TO PROVIDE ADEQUATE SAFETY AND
SECURITY TO THE PETITIONER NO. 1 HER CHILDREN AND HER
FAMILY MEMBERS.
IN WRIT PETITION No.28591 OF 2023
BETWEEN:
SUDHIR MADHAV PAI
S/O LATE MADHAV PAI,
AGED ABOUT 47 YEARS,
RESIDING AT BHARATH BAGH,
KADRI ROAD,
BHARATH BEEDI WORKS PVT. LTD.,
KODIALBAIL, MANGALORE,
DAKSHINA KANNADA,
KARNATAKA - 575 003.
... PETITIONER
(BY SRI SANDESH J.CHOUTA, SR.ADVOCATE FOR
SRI AKASH B.SHETTY, ADVOCATE)
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AND:
1. THE STATE OF KARNATAKA
BY AMRUTHAHALLY POLICE STATION,
REPRESENTED BY THE SPP,
HIGH COURT BUILDING,
BENGALURU - 560 001.
2. SHREYA SUDHIR PAI @ CHANDRIKA KAMAT
D/O LAXMAN R. KAMAT,
AGED ABOUT 42 YEARS,
RESIDING AT: A204,
RMZ LATITUDE,
BELLARY ROAD,
AMRUTHAHALLI, HEBBAL,
BENGALURU - 560 092.
... RESPONDENTS
(BY SRI B.N.JAGADEESHA, ADDL.SPP FOR R-1;
SMT.JAINA KOTARI, SENIOR ADVOCATE FOR
SRI ARPAN B. PATTANASHETTI, ADVOCATE FOR R-2)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND
227 OF THE CONSTITUTION OF INDIA READ WITH SECTION 482 OF
CR.P.C., PRAYING TO QUASH THE FIR IN CRIME NO. 0295/2023
DATED 08/10/2023 IN AMRUTHAHALLY POLICE STATION,
BANGALORE PENDING BEFORE THE 7TH ADDL. CCM COURT,
NRUPATUNGA ROAD, BANGALORE CITY FOR THE OFFENCES
PUNISHABLE U/S 498A, 506 OF INDIAN PENAL CODE, PENDING
BEFORE THE 7TH ADDL. CCM COURT, NRUPATUNGA ROAD,
BANGALORE CITY ANNEXURE-A.
THESE WRIT PETITIONS HAVING BEEN HEARD AND
RESERVED FOR ORDERS ON 06.01.2025, COMING ON FOR
PRONOUNCEMENT THIS DAY, THE COURT MADE THE FOLLOWING:-
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CORAM: THE HON'BLE MR JUSTICE M.NAGAPRASANNA
CAV ORDER
In the course of this order, for the sake of convenience, the
petitioner in Writ Petition No.28591 of 2023 who is the husband of
the complainant will be referred to as the petitioner or THE husband
and the 1st petitioner in Writ Petition No.3809 of 2024 who is the
wife of the petitioner in the companion petition will be referred to as
the respondent or the wife. The other parties will be referred as
per their rank in the writ petitions. These petitions arise out of
complaints and counter complaints between the petitioner/husband
and the respondent/wife, details of which are narrated hereinbelow.
2. Facts in Writ Petition No.28591 of 2023: The
petitioner/husband and the respondent/wife get married on
10-05-2007. Two children are born from the wedlock, a son and a
daughter on 11-12-2011 and 02-05-2013. It is the case of the
prosecution that on 28-04-2016 the husband receives a message
from one Chaithra Shetty through face-book message which
indicated that the respondent/wife and Prasad Shetty, the husband
of Chaithra Shetty are in relationship. The petitioner is said to have
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questioned the respondent/wife about the allegations made by
Chaithra Shetty. The respondent/wife is said to have admitted that
Prasad Shetty was her ex-boyfriend and further promised that she
will never get in touch with her ex-boyfriend. After the said
incident, it is averred, the relationship between the two - petitioner
and the respondent - got completely strained. On 10-09-2020 the
respondent/wife leaves the matrimonial house in Mangalore and
shifts to Bangalore with kids. Since then the kids are with the
respondent/wife and have been staying at Bangalore.
3. On 05-10-2020 the petitioner receives a legal notice from
the hands of the respondent/wife calling upon him to agree for a
mutual consent for termination of marriage and to discuss with
regard to the settlement about kids. Another notice is received on
15-03-2022 in which the averment is that in the event the husband
would not come forward for settlement, criminal proceedings would
be initiated. After this on 11-04-2022, the parties start mediation
to sort out differences between them. When the mediation failed or
did not reach the terms of settlement as thought by the
respondent/wife, on 07-10-2023 she files an application under
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Section 10 of the Hindu Marriage Act seeking separation.
Immediately thereafter, on the next day, she files a complaint
before the jurisdictional Police alleging offences punishable under
Sections 498A and 506 of the IPC. This becomes a crime in Crime
No.295 of 2023. Again, a third proceeding is initiated by the
respondent/wife on 09-10-2023 invoking Section 125 of the Cr.P.C.,
in Criminal Miscellaneous No.851 of 2023 seeking maintenance
from the hands of the petitioner/husband. Fourth proceeding is
instituted by the respondent/wife in Criminal Miscellaneous No.153
of 2023 invoking Section 12 of the Domestic Violence Act.
4. The petitioner/husband files a complaint against the
wife/respondent, her ex-boyfriend Prasad Shetty and her mother
alleging offences punishable under Sections 420, 406, 403, 109,
384 and 34 of the IPC in Crime No. 176 of 2023. Proceedings in
Crime No.295 of 2023 are challenged by the petitioner/husband in
Writ Petition No.28591 of 2023. The petitioner/husband then files a
G & W.C No.30 of 2023 for custody of children which is pending
consideration. On 29-11-2023 after all these proceedings, the
petitioner/husband files a petition in M.C.No.1688 of 2023 seeking
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restitution of conjugal rights. The respondent/wife and other
accused challenged the crime so registered in Crime No.176 of
2023 in Writ petition No.3809 of 2024.
5. The crux of the complaint in Writ Petition No.28591 of
2023 is that the petitioner has been cheated by the respondent/
wife, extracted money on one pretext or the other and even before
the concerned Court seeking maintenance false affidavits are filed
and close to ₹1/- crore maintenance is already paid by the husband
to the wife. Soon after registration of the complaint, the wife takes
it to the mediation and is said to have defamed or threatened the
petitioner/husband. Therefore, this forms the crux of the complaint
by the husband against the wife. While so doing other members of
the family of the wife are drawn into the proceedings.
6. Heard Sri Sandesh J. Chouta, learned senior counsel
appearing for the petitioner in W.P.No.28591 of 2023 and
respondent No.3 in W.P.No.3809 of 2024; Sri B.N.Jagadeesha,
learned Additional State Public Prosecutor appearing for respondent
No.1 in W.P.No.28591 of 2023 and respondents 1 and 2 in
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W.P.No.3809 of 2024 and Smt. Jaina Kothari, learned senior
counsel appearing petitioners in W.P.No.3909 of 2024 and
respondent No.2 in Writ Petition No.28591 of 2023.
7. The learned senior counsel Sri Sandesh J. Chouta
appearing for the petitioner/husband would vehemently contend
that this is a clear case of abuse of the process of law, as the
respondent/wife in her complaint does not utter even a word about
cruelty which is necessary under Section 498A of the IPC. All the
allegations spring on 15-06-2020, but the complaint is registered
on 08-10-2023 without a speck of explanation as to why she kept
quiet for three long years. Without there being any ingredients for
the offences, if further proceedings are permitted to be continued,
the learned senior counsel would submit, that it will become an
abuse of the process of law.
8. Per contra, the learned senior counsel Smt. Jaina Kotari
appearing for the respondent/wife submits that cruelty under
Section 498A of the IPC need not be restricted to physical cruelty or
torture only. Mental cruelty is also a facet which would come within
the ambit of Section 498A of the IPC. She would submit that since
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the matter is still at the stage of investigation, it should not be
interfered with. She would seek to place reliance upon certain
judgments which would all bear consideration qua their relevance in
the course of the order.
9. The learned senior counsel Sri Sandesh J. Chouta
appearing for the husband/complainant in Writ Petition No.3809 of
2024 would submit that the wife has instituted seven proceedings
against the husband; does not cooperate with closure of
proceedings, files false affidavit before the concerned Court with
regard to her income and on that false pretext the
petitioner/husband as on to-day paid close to ₹1/- crore as
maintenance to the wife. This is an admitted fact. Therefore, on
falsehood the wife is taking maintenance by cheating and extortion.
He would submit that the petition filed by the wife be dismissed and
the petition filed by the husband be allowed.
10. The learned senior counsel Smt. Jaina Kotari appearing
for the respondent/wife would contend that taking maintenance in a
legal manner can never be branded as extortion, as those orders on
maintenance are not challenged by the petitioner/husband.
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Therefore, cheating or extortion cannot be made out. The other
offence of criminal intimidation that is alleged is the imagination of
the learned counsel for the petitioner/husband. She would seek the
petition filed by the wife be allowed and the petition filed by the
husband be dismissed.
11. I have given my anxious consideration to the submissions
made by the respective learned senior counsel and have perused
the material on record.
12. The afore-mentioned facts are a matter of record. I deem
it appropriate to consider Writ Petition No.28591 of 2023 filed by
the husband at the outset. It is not in dispute that the
petitioner/husband gets married to the complainant/wife on
10-05-2007 and two children are born from the wedlock. All the
trouble began when the petitioner/husband is said to have received
a message from one Chaithra Shetty wife of Prasad Shetty through
face-book alleging that the respondent/wife and Prasad Shetty,
husband of Chaithra Shetty are in relationship. Looking at this
message, the petitioner is said to have questioned the
respondent/wife. The wife then is said to have undertaken that such
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things would not be repeated in future. The message on face-book
messenger is also appended to the petition. It reads as follows:
"28 APR 2016 AT 21.23
Sir........ This is chaitra shetty.... I'm prasad shetty wife ....
plz. call me.... its very urgent.....my number is 9986411760.
28 APR 2016 AT 21.41
I want to talk abt ur wife n my husband sir....
28 APR 2016 AT 22.52
Sir plzzzz call
I'm trying in all possible ways to reach u.... plzzzz call.
29 APR 2016 AT 00.21
Sir plzz call."
It appears that the allegation that it began to brew stopped
thereafter. But, the averment in the petition is that the wife never
stopped relationship with Prasad Shetty. Between 28-04-2016 and
10-09-2020 the relationship between the husband and wife further
floundered. On floundering of relationship to an irreconcilable
position, the wife leaves the matrimonial house in Mangalore and
shifts to Bangalore with the children to an apartment that was
owned by the petitioner/husband. On 05-10-2020 the petitioner
receives a legal notice from the wife calling upon him to agree for a
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divorce on mutual consent. When the petitioner/husband does not
respond for settlement, the wife causes another notice on
15-03-2022. The said notice is also appended to the petition. The
petitioner/husband is said to have given an interim reply to the said
notice. After that commences multiple proceedings of settlement
between the parties - husband and the wife. The WhatsApp chats
appended to the petition is said to be the testimony of those
proceedings to arrive at a settlement agreement between the two.
The draft of the settlement agreement is also appended to the
petition. During the pendency of mediation/settlement proceedings,
the wife files an application under Section 10 of the Hindu Marriage
Act seeking judicial separation before the concerned Family Court.
The said proceeding is said to be pending before the concerned
Court. On 08-10-2023 comes the impugned complaint. It becomes
necessary to notice the complaint in its entirety. The complaint
dated 08-10-2023 reads as follows:
"To
The S.H.O.
Amrathalli Police Station
Bangaluru, Karnataka
From
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Mrs. Shreya Sudhir Pai
(Before marriage known as Chandrika Kamat)
wife of Mr. Sudhir M Pai,
D/o Laxman R. Kamat
Resident of A204, RMZ Latitude
Presently Resident: Bellary Road, Amrutahalli
Hebbal, Bangalore -560092
Subject: Harassment by Husband and relatives
Sir.
1. Shreya Pai, the above-mentioned applicant, most
respectfully submit that I got married to Mr. Sudhir M Pai, on
10.05.2007 at Bangaluru in which my parents have spent huge
amount of money and fulfilled all the demands of the family of
my husband, which came at the very last moment. After the
marriage we were blessed with two children a son aged about
11 years and a daughter aged about 9 years. My husband was
always very abusive and humiliating and he used to humiliate
me in public and private moments. He forced us to sleep on
floor for several years saying his sleep would disturb by my
small children. On 15th June 2020 my phone stopped
working and my husband asked me to use his old i-phone
till he gets my phone repaired. When I tried to use that
phone, I came across with several messages, whatsapp
chats, messenger chats and images and photographs
which was highly intimidating and humiliating and a
shock for me. My husband who had been treating me with
cruelty and was not giving any time, attention and
respect and was always humiliating and disrespecting
me, was actually living dual life with three of his friends namely
Mr. Narayan Nayak (alias Babu), Mr. Ananth Kamath and Late
Veerandra Ballal. All these men were involved in soliciting
prostitutes, pervert discussion and representation of women,
minor girls and their own daughters and sisters and
systematically planning how to abuse them sexually. I was very
shocked to see that my husband had shared several of my and
my children's photographs including some objectionable and
intimate chats with his friends. With one of his friends, he
systematically was guiding her how to sexually exploit me by
making me drunk and taking advantage of me. Not only that
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they had pervert talks about their own sisters, mothers and
countless women. My husband along with these three culprits
was involved in fulfilling his untamed and pervert sexual desires
with prostitutes, escorts and other antisocial activities. Not only
the same, my husband was arranging prostitutes/escorts for his
friends and negotiating on the amount and rate per person for
sexual services. My husband had discussed about me in most
degrading manner as if I was an object of his pleasure. I was
being forced and pressurised by my husband to get indulge in
group sex and other activities with his friends which I refused.
All these had put me in a mental trauma and shock. When I
confronted him and his family, his family told him to shift me to
Bangalore and requested me that I shall not take any action for
the sake of reputation and image of both the families. I was
totally devasted. I am financially depended on my husband as
after marriage I was not allowed to work and had to take care of
family responsibilities. My husband even after several reminders
did not gave my investments and other important documents
and belongings back. My husband threatened me on several
occasions that he is very resourceful and can cause any harm to
me. My husband has most likely misappropriated my funds and
investments. My husband's family who kept on assuring me that
everything will be sorted but they fooled me to get most to stop
taking any action. I have been threatened regularly by my
husband and his accomplices for life, safety and wellbeing of
myself and my children. Therefore, I request yourself to
considers the criminal activities done by my husband and his
friends which involves various kinds of severe criminal activities
which needs to be thoroughly investigated and necessary action
should be taken against my husband and his accomplices for
causing serious mental harassment, mental and physical
tortures to me, harassment to my children; misappropriation of
my investments, funds and financial resources, not giving my
documents, financial and investment details and documents and
misappropriation of my funds and I also humbly request you to
provide myself and my children security as our lives are at great
danger and my husband.
Thanking you in anticipation
Sd/-
Yours sincerely."
(Emphasis added)
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It is the allegation of the wife in the complaint that she came across
certain messages on the old phone of the petitioner/husband on
15-06-2020 in which there were several messages and WhatsApp
chats which were highly intimidating and humiliating and a shocker
to her. It is the allegation that the petitioner/husband had
relationship with prostitutes and indulging in the unlawful activities
and some photographs of her family were also in the phone. The
wife construing this to be criminal activities and need to be
thoroughly investigated registers the complaint. Not one sentence
of cruelty for the purpose of demand of dowry, as obtaining under
Section 498A of the IPC is even uttered in the complaint. Instances
that happened on 15-06-2020 are sought to be projected as
allegations on 08-10-2023, clearly 3½ years after the incident and
after the talks between the two for settlement of permanent
alimony or the custody of children failed. This complaint become a
crime in Crime No.295 of 2023 for offences under Section 498A and
506 of the IPC.
13. The wife does not stop at registering the crime even
though the crime is registered on 08-10-2023. The very next day
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i.e., on 09-10-2023 the wife initiates proceedings seeking
maintenance under Section 125 of the Cr.P.C., in Criminal
Miscellaneous No.851 of 2023. Two days thereafter on 11-10-2023
invoking Section 12 of the Domestic Violence Act, she files Criminal
Miscellaneous No.153 of 2023 seeking monthly maintenance at ₹2/-
lakhs and interim maintenance, in all at ₹40/- lakhs. This is the
third proceeding initiated by the wife. Soon after initiation of these
proceedings, it appears the wife began to publish contents of the
complaint in the media. Therefore, the petitioner had to file
O.S.No.6779 of 2023 against the wife and media houses not to
publish any item in Crime No.295 of 2023. The said suit is pending
consideration with an injunction operating.
14. The petitioner/husband then had to initiate proceedings
for offences punishable under Section 420 of the IPC inter alia in
Crime No.176 of 2023 and two other proceedings - one in G & W.C.
No.30 of 2023 and M.C. petition in M.C.No.1688 of 2024 seeking
restitution of conjugal rights. Therefore, there are seven
proceedings between the husband and the wife. The issue now
would be whether the complaint so registered by the wife against
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the husband quoted supra would make out an offence under
Section 498A of the IPC. Section 498A reads as follows:
"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."
(Emphasis supplied)
Section 498A requires the husband or any member of his family to
meet out such cruelty on the wife against a demand. Demand can
be of any kind but should touch upon demand for dowry. If the
complaint is pitted against ingredients of Section 498A, the
unmistakable inference would be that it does not have even an iota
of ingredients as necessary under Section 498A of the IPC.
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15. The learned senior counsel appearing for the
respondent/wife admits that it does not have ingredients of physical
torture, but all the ingredients are of mental torture. In this regard
she has placed reliance upon several judgments viz.,
(i) RUPALI DEVI v. STATE OF UTTAR PRADESH
- (2019) 5 SCC 384;
(ii) LAXMAN RAM MANE v. STATE OF MAHARASHTRA
- (2010) 13 SCC 125;
(iii) K.PREMA S.RAO v. YADLA SRINIVASA RAO
- (2003) 1 SCC 217;
(iv) MOHD.HOSHAN, A.P v. STATE OF A.P.
- (2002) 7 SCC 414;
(v) STATE OF WEST BENGAL v. ORILAL JAISWAL
- AIR 1994 SC 1418; and
(vi) DHONDIBA DEVRAO WADWALE v. STATE OF
MAHARASHTRA
- 2022 SCC OnLine Bom.22.
A perusal at the judgments cited by the learned senior counsel for
the wife to buttress her submission with regard to mental cruelty
would show that they are all judgments rendered on the facts of
those cases. There can be no qualm about the principles laid down
therein qua the facts of those cases.
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16. The Apex Court in the case RUPALI DEVI supra holds
that certain acts of mental torture would come within the ambit of
domestic violence and those domestic violence ingredients can be
paraphrased into the ingredients under Section 498A of the IPC.
Again, in LAXMAN RAM MANE supra the case was concerning
Section 498A and 306 of the IPC about mental torture in the form
of illicit relationship of a married man with another women
amounting to cruelty under Section 498A of the IPC. All the other
judgments relied on are an amalgam of offences under Sections
306 and 498A of the IPC and all of them would touch upon illicit
relationship. The issue in the lis is not with regard to physical
torture is an admitted fact. Whether it amounts to mental torture
and that mental torture would come within the ambit of Section
498A in the peculiar facts of this Court is what is required to be
noticed.
17. As observed hereinabove, there is no allegation of torture.
The allegation is about 3½ years ago the wife had seen messages
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in the phone of the husband. The offence did not spring on that
day. 3½ years passed by. Multiple proceedings for settlement
between the parties happen. The settlement does not fructify into
what the wife wanted. Therefore, the complaint has sprung. This
is the only inference that can be drawn against the wife in the case
at hand. The link in the chain of events are vindictive of the
aforesaid inference as between 05-10-2020 up to 07-10-2023 the
submissions are with regard to multiple proceedings and drafting of
a settlement agreement even. Since settlement agreement was not
taken to its logical conclusion, one after the other proceedings are
initiated by the wife firstly on 08-10-2023 and subsequently on
09-10-2023 and 11-10-2023. The petitioner/husband in retaliation
has registered several proceedings. Finding no ingredient that is
even present to its remotest sense to drive home the offence under
Section 498A, if further proceedings are permitted to be continued,
it would run foul of plethora of judgments rendered by the Apex
Court not concerning other members of the family but concerning
the husband even.
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18. The Apex Court in the case of ACHIN GUPTA v. STATE
OF HARYANA1 considers identical circumstance and obliterates
proceedings against the husband. The Apex Court in the said
judgment has held as follows:
".... .... ....
15. Having heard the learned counsel appearing for the
parties and having gone through the materials on record, the
only question that falls for our consideration is whether the
criminal proceedings should be quashed?
16. The Appellant and the Respondent No. 2 got married
in October 2008. The couple lived together for more than a
decade and in the wedlock a child was born in March 2012.
17. We take notice of the fact that the Appellant filed a
divorce petition in July 2019 on the ground of cruelty. The
divorce petition was withdrawn as the Appellant was finding it
difficult to take care of his child, while travelling all the way to
Hisar on the dates fixed by the Court. The Appellant's mother
had to file a domestic violence case against the First Informant
in October 2020 under the provisions of the Protection of
Women from Domestic Violence Act, 2005.
18. The plain reading of the FIR and the charge-
sheet papers indicate that the allegations levelled by the
First Informant are quite vague, general and sweeping,
specifying no instances of criminal conduct. It is also
pertinent to note that in the FIR no specific date or time
of the alleged offence/offences has been disclosed. Even
the police thought fit to drop the proceedings against the
other members of the Appellant's family. Thus, we are of
the view that the FIR lodged by the Respondent No. 2
was nothing but a counterblast to the divorce petition &
also the domestic violence case.
1
2024 SCC OnLine SC 759
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19. It is also pertinent to note that the Respondent
No. 2 lodged the FIR on 09.04.2021, i.e., nearly 2
years after the filing of the divorce petition by the
Appellant and 6 months after the filing of the domestic
violence case by her mother-in-law. Thus, the First
Informant remained silent for nearly 2 years after the
divorce petition was filed. With such an unexplained
delay in filing the FIR, we find that the same was filed
only to harass the Appellant and his family members.
20. It is now well settled that the power under
Section 482 of the Cr. P.C. has to be exercised sparingly,
carefully and with caution, only where such exercise is
justified by the tests laid down in the Section itself. It is
also well settled that Section 482 of the Cr. P.C. does not
confer any new power on the High Court but only saves
the inherent power, which the Court possessed before the
enactment of the Criminal Procedure Code. There are
three circumstances under which the inherent jurisdiction
may be exercised, namely (i) to give effect to an order
under the Code, (ii) to prevent abuse of the process of
Court, and (iii) to otherwise secure the ends of justice.
21. The investigation of an offence is the field exclusively
reserved for the Police Officers, whose powers in that field are
unfettered, so long as the power to investigate into the
cognizable offence is legitimately exercised in strict compliance
with the provisions under Chapter XII of the Cr. P.C.. While
exercising powers under Section 482 of the Cr. P.C., the court
does not function as a Court of appeal or revision. As noted
above, the inherent jurisdiction under the Section, although
wide, yet should be exercised sparingly, carefully and with
caution and only when such exercise is justified by the tests
specifically laid down in the Section itself. It is to be
exercised ex debito justitiae to do real and substantial justice for
the administration of which alone courts exist. The authority of
the court exists for advancement of justice and if any attempt is
made to abuse that authority so as to produce injustice, the
court has the power to prevent such abuse. It would be an
abuse of process of the court to allow any action which would
result in injustice and prevent promotion of justice. In exercise
of the powers, the court would be justified to quash any
24
proceeding if it finds that the initiation or continuance of it
amounts to abuse of the process of court or quashing of these
proceedings would otherwise serve the ends of justice. When no
offence is disclosed by the complaint, the court may examine
the question of fact. When a complaint is sought to be quashed,
it is permissible to look into the materials to assess what the
complainant has alleged and whether any offence is made out
even if the allegations are accepted in toto.
22. Once the investigation is over and chargesheet is
filed, the FIR pales into insignificance. The court, thereafter,
owes a duty to look into all the materials collected by the
investigating agency in the form of chargesheet. There is
nothing in the words of Section 482 of the Cr. P.C. which
restricts the exercise of the power of the court to prevent the
abuse of process of court or miscarriage of justice only to the
stage of the FIR. It would be a travesty of justice to hold that
the proceedings initiated against a person can be interfered with
at the stage of FIR but not if it has materialized into a
chargesheet.
23. In R.P. Kapur v. State of Punjab, AIR 1960 SC 866,
this Court summarised some categories of cases where inherent
power can, and should be exercised to quash the proceedings:--
(i) where it manifestly appears that there is a legal bar
against the institution or continuance e.g. want of
sanction;
(ii) where the allegations in the first information report or
complaint taken at its face value and accepted in their
entirety do not constitute the offence alleged;
(iii) where the allegations constitute an offence, but there
is no legal evidence adduced or the evidence adduced
clearly or manifestly fails to prove the charge.
24. This Court, in the case of State of
A.P. v. VangaveetiNagaiah, (2009) 12 SCC 466 : AIR 2009 SC
2646, interpreted clause (iii) referred to above, observing
thus:--
25
"6. In dealing with the last category, it is
important to bear in mind the distinction
between a case where there is no legal evidence
or where there is evidence which is clearly
inconsistent with the accusations made, and a
case where there is legal evidence which, on
appreciation, may or may not support the
accusations. When exercising jurisdiction under
Section 482 of the Code, the High Court would
not ordinarily embark upon an enquiry whether
the evidence in question is reliable or not or
whether on a reasonable appreciation of it
accusation would not be sustained. That is the
function of the trial Judge. Judicial process no
doubt should not be an instrument of
oppression, or, needless harassment Court
should be circumspect and judicious in
exercising discretion and should take all relevant
facts and circumstances into consideration
before issuing process, lest it would be an
instrument in the hands of a private complainant
to unleash vendetta to harass any person
needlessly. At the same time the Section is not
an instrument handed over to an accused to
short-circuit a prosecution and bring about its
sudden death. The scope of exercise of power
under Section 482 of the Code and the categories
of cases where the High Court may exercise its
power under it relating to cognizable offences to
prevent abuse of process of any court or
otherwise to secure the ends of justice were set
out in some detail by this Court in State of
Haryana v. Bhajan Lal [1992 Supp (1) SCC 335]. A
note of caution was, however, added that the
power should be exercised sparingly and that too
in rarest of rare cases.
The illustrative categories indicated by this Court are as
follows:
"(1) Where the allegations made in the first
information report or the complaint, even if they are taken
at their face value and accepted in their entirety do not
26
prima facie constitute any offence or make out a case
against the accused.
(2) Where the allegations in the first information
report and other materials, if any, accompanying the FIR do
not disclose a cognizable offence, justifying an investigation
by police officers under Section 156(1) of the Code except
under an order of a Magistrate within the purview of Section
155(2) of the Code.
(3) Where the uncontroverted allegations made in
the F.I.R. or complaint and the evidence collected in support
of the same do not disclose the commission of any offence
and make out a case against the accused.
(4) Where the allegations in the F.I.R. do not
constitute a cognizable offence but constitute only a non-
cognizable offence, no investigation is permitted by a Police
Officer without an order of a Magistrate as contemplated
under Section 155(2) of the Code.
(5) Where the allegations made in the FIR or
complaint are so absurd and inherently improbable on the
basis of which no prudent person can ever reach a just
conclusion that there is sufficient ground for proceeding
against the accused.
(6) Where there is an express legal bar engrafted in
any of the provisions of the Code or the concerned Act
(under which a criminal proceeding is instituted) to the
institution and continuance of the proceedings and/or where
there is a specific provision in the Code or the concerned
Act, providing efficacious redress for the grievance of the
aggrieved party.
(7) Where a criminal proceeding is manifestly
attended with mala fide and/or where the proceeding is
maliciously instituted with an ulterior motive for wreaking
vengeance on the accused and with a view to spite him due
to private and personal grudge."
(Emphasis Supplied)
25. If a person is made to face a criminal trial on some
general and sweeping allegations without bringing on record any
specific instances of criminal conduct, it is nothing but abuse of
the process of the court. The court owes a duty to subject the
27
allegations levelled in the complaint to a thorough scrutiny to
find out, prima facie, whether there is any grain of truth in the
allegations or whether they are made only with the sole object
of involving certain individuals in a criminal charge, more
particularly when a prosecution arises from a matrimonial
dispute.
26. In Preeti Gupta v. State of Jharkhand, reported in
2010 Criminal Law Journal 4303 (1), this Court observed the
following:--
"28. It is a matter of common knowledge that
unfortunately matrimonial litigation is rapidly increasing in
our country. All the courts in our country including this court
are flooded with matrimonial cases. This clearly
demonstrates discontent and unrest in the family life of a
large number of people of the society.
29. The courts are receiving a large number of cases
emanating from section 498-A of the Penal Code,
1860 which 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."
30. It is a matter of common experience that most of
these complaints under section 498-A IPC are filed in the
heat of the moment over trivial issues without proper
28
deliberations. We come across a large number of such
complaints which are not even bona fide and are filed with
oblique motive. At the same time, rapid increase in the
number of genuine cases of dowry harassment are also a
matter of serious concern.
31. The learned members of the Bar have enormous
social responsibility and obligation to ensure that the social
fiber of family life is not ruined or demolished. They must
ensure that exaggerated versions of small incidents should
not be reflected in the criminal complaints. Majority of the
complaints are filed either on their advice or with their
concurrence. The learned members of the Bar who belong
to a noble profession must maintain its noble traditions and
should treat every complaint under section 498-A as a basic
human problem and must make serious endeavour to help
the parties in arriving at an amicable resolution of that
human problem. They must discharge their duties to the
best of their abilities to ensure that social fiber, peace and
tranquility of the society remains intact. The members of
the Bar should also ensure that one complaint should not
lead to multiple cases.
32. Unfortunately, at the time of filing of the
complaint the implications and consequences are not
properly visualized by the complainant that such complaint
can lead to insurmountable harassment, agony and pain to
the complainant, accused and his close relations.
33. The ultimate object of justice is to find out the
truth and punish the guilty and protect the innocent To find
out the truth is a herculean task in majority of these
complaints. The tendency of implicating husband and all his
immediate relations is also not uncommon. At times, even
after the conclusion of criminal trial, it is difficult to
ascertain the real truth. The courts have to be extremely
careful and cautious in dealing with these complaints and
must take pragmatic realities into consideration while
dealing with matrimonial cases. The allegations of
harassment of husband's close relations who had been
living in different cities and never visited or rarely visited
the place where the complainant resided would have an
entirely different complexion. The allegations of the
complaint are required to be scrutinized with great care and
circumspection. Experience reveals that long and protracted
criminal trials lead to rancour, acrimony and bitterness in
the relationship amongst the parties. It is also a matter of
29
common knowledge that in cases filed by the complainant if
the husband or the husband's relations had to remain in jail
even for a few days, it would ruin the chances of amicable
settlement altogether. The process of suffering is extremely
long and painful.
34. Before parting with this case, we would like to
observe that a serious relook of the entire provision is
warranted by the legislation. It is also a matter of common
knowledge that exaggerated versions of the incident are
reflected in a large number of complaints. The tendency of
over implication is also reflected in a very large number of
cases.
35. The criminal trials lead to immense sufferings for
all concerned. Even ultimate acquittal in the trial may also
not be able to wipe out the deep scars of suffering of
ignominy. Unfortunately a large number of these complaints
have not only flooded the courts but also have led to
enormous social unrest affecting peace, harmony and
happiness of the society. It is high time that the legislature
must take into consideration the pragmatic realities and
make suitable changes in the existing law. It is imperative
for the legislature to take into consideration the informed
public opinion and the pragmatic realities in consideration
and make necessary changes in the relevant provisions of
law. We direct the Registry to send a copy of this judgment
to the Law Commission and to the Union Law Secretary,
Government of India who may place it before the Hon'ble
Minister for Law and Justice to take appropriate steps in the
larger interest of the society."
(Emphasis supplied)
27. In the aforesaid context, we may refer to and rely
upon the decision of this Court in the case of Arnesh
Kumar v. State of Bihar, (Criminal Appeal No. 1277 of 2014,
decided on 2nd July, 2014). In the said case, the petitioner,
apprehending arrest in a case under Section 498A of
the IPC and Section 4 of the Dowry Prohibition Act, 1961,
prayed for anticipatory bail before this Court, having failed to
obtain the same from the High Court. In that context, the
observations made by this Court in paras 6, 7 and 8 respectively
are worth taking note of. They are reproduced below:--
"6. There is phenomenal increase in matrimonial
disputes in recent years. The institution of marriage is
30
greatly revered in this country. Section 498-A of
the IPC was introduced with avowed object to combat the
menace of harassment to a woman at the hands of her
husband and his relatives. The fact that Section 498-A is a
cognizable and non-bailable offence has lent it a dubious
place of pride amongst the provisions that are used as
weapons rather than shield by disgruntled wives. The
simplest way to harass is to get the husband and his
relatives arrested under this provision. In a quite number of
cases, bed-ridden grand-fathers and grand-mothers of the
husbands, their sisters living abroad for decades are
arrested. Crime in India 2012 Statistics published by
National Crime Records Bureau, Ministry of Home Affairs
shows arrest of 1,97,762 persons all over India during the
year 2012 for offence under Section 498-A of the IPC, 9.4%
more than the year 2011. Nearly a quarter of those arrested
under this provision in 2012 were women i.e. 47,951 which
depicts that mothers and sisters of the husbands were
liberally included in their arrest net. Its share is 6% out of
the total persons arrested under the crimes committed
under Penal Code, 1860. It accounts for 4.5% of total
crimes committed under different sections of penal code,
more than any other crimes excepting theft and hurt. The
rate of charge-sheeting in cases under Section 498A, IPC is
as high as 93.6%, while the conviction rate is only 15%,
which is lowest across all heads. As many as 3,72,706 cases
are pending trial of which on current estimate, nearly
3,17,000 are likely to result in acquittal.
7. Arrest brings humiliation, curtails freedom and
cast scars forever. Law makers know it so also the police.
There is a battle between the law makers and the police and
it seems that police has not learnt its lesson; the lesson
implicit and embodied in the Cr. P.C. It has not come out of
its colonial image despite six decades of independence, it is
largely considered as a tool of harassment, oppression and
surely not considered a friend of public. The need for
caution in exercising the drastic power of arrest has been
emphasized time and again by Courts but has not yielded
desired result. Power to arrest greatly contributes to its
arrogance so also the failure of the Magistracy to check it.
Not only this, the power of arrest is one of the lucrative
sources of police corruption. The attitude to arrest first and
then proceed with the rest is despicable. It has become a
handy tool to the police officers who lack sensitivity or act
with oblique motive.
31
8. Law Commissions, Police Commissions and this
Court in a large number of judgments emphasized the need
to maintain a balance between individual liberty and societal
order while exercising the power of arrest. Police officers
make arrest as they believe that they possess the power to
do so. As the arrest curtails freedom, brings humiliation and
casts scars forever, we feel differently. We believe that no
arrest should be made only because the offence is non-
bailable and cognizable and therefore, lawful for the police
officers to do so. The existence of the power to arrest is one
thing, the justification for the exercise of it is quite another.
Apart from power to arrest, the police officers must be able
to justify the reasons thereof. No arrest can be made in a
routine manner on a mere allegation of commission of an
offence made against a person. It would be prudent and
wise for a police officer that no arrest is made without a
reasonable satisfaction reached after some investigation as
to the genuineness of the allegation. Despite this legal
position, the Legislature did not find any improvement.
Numbers of arrest have not decreased. Ultimately, the
Parliament had to intervene and on the recommendation of
the 177th Report of the Law Commission submitted in the
year 2001, Section 41 of the Code of Criminal
Procedure (for short Cr. P.C.), in the present form came to
be enacted. It is interesting to note that such a
recommendation was made by the Law Commission in its
152nd and 154th Report submitted as back in the year 1994.
..."
(Emphasis Supplied)
28. In the case of Geeta Mehrotra v. State of
U.P., (2012) 10 SCC 741, this Court observed as under:--
"19. Coming to the facts of this case, when the
contents of the FIR is perused, it is apparent that there are
no allegations against Kumari Geeta Mehrotra and Ramji
Mehrotra except casual reference of their names who have
been included in the FIR but mere casual reference of the
names of the family members in a matrimonial dispute
without allegation of active involvement in the matter would
not justify taking cognizance against them overlooking the
fact borne out of experience that there is a tendency to
involve the entire family members of the household in the
domestic quarrel taking place in a matrimonial dispute
specially if it happens soon after the wedding.
32
20. It would be relevant at this stage to take note of
an apt observation of this Court recorded in the matter
of G.V. Rao v. L.H.V. Prasad, (2000) 3 SCC 693 wherein
also in a matrimonial dispute, this Court had held that the
High Court should have quashed the complaint arising out
of a matrimonial dispute wherein all family members had
been roped into the matrimonial litigation which was
quashed and set aside. Their Lordships observed therein
with which we entirely agree that:
"there has been an outburst of matrimonial dispute
in recent times. Marriage is a sacred ceremony, main
purpose of which is to enable the young couple to settle
down in life and live peacefully. But little matrimonial
skirmishes suddenly erupt which often assume serious
proportions resulting in heinous crimes in which elders of
the family are also involved with the result that those who
could have counselled and brought about rapprochement
are rendered helpless on their being arrayed as accused in
the criminal case. There are many reasons which need not
be mentioned here for not encouraging matrimonial
litigation so that the parties may ponder over their defaults
and terminate the disputes amicably by mutual agreement
instead of fighting it out in a court of law where it takes
years and years to conclude and in that process the parties
lose their young days in chasing their cases in different
courts."
The view taken by the judges in this matter was that
the courts would not encourage such disputes.
21. In yet another case reported in (2003) 4 SCC
675 : AIR 2003 SC 1386 in the matter of B.S. Joshi v. State
of Haryana it was observed that there is no doubt that the
object of introducing Chapter XXA containing
Section 498A in the Penal Code, 1860 was to prevent the
torture to a woman by her husband or by relatives of her
husband. Section 498A was added with a view to punish the
husband and his relatives who harass or torture the wife to
coerce her relatives to satisfy unlawful demands of dowry.
But if the proceedings are initiated by the wife under
Section 498A against the husband and his relatives and
subsequently she has settled her disputes with her husband
and his relatives and the wife and husband agreed for
mutual divorce, refusal to exercise inherent powers by the
High Court would not be proper as it would prevent woman
33
from settling earlier. Thus for the purpose of securing the
ends of justice quashing of FIR becomes necessary,
Section 320 Cr. P.C. would not be a bar to the exercise of
power of quashing. It would however be a different matter
depending upon the facts and circumstances of each case
whether to exercise or not to exercise such a power."
(Emphasis supplied)
29. The learned counsel appearing for the
Respondent No. 2 as well as the learned counsel
appearing for the State submitted that the High Court
was justified in not embarking upon an enquiry as
regards the truthfulness or reliability of the allegations in
exercise of its inherent power under Section 482 of
the Cr. P.C. as once there are allegations disclosing the
commission of a cognizable offence then whether they
are true or false should be left to the trial court to decide.
30. In the aforesaid context, we should look into the
category 7 as indicated by this Court in the case of Bhajan
Lal (supra). The category 7 as laid reads thus:--
"(7) where a criminal proceeding is manifestly
attended with mala fide and/or where the proceeding is
maliciously instituted with an ulterior motive for wreaking
vengeance on the accused and with a view to spite him due
to private and personal grudge."
31. We are of the view that the category 7 referred
to above should be taken into consideration and applied
in a case like the one on hand a bit liberally. If the Court
is convinced by the fact that the involvement by the
complainant of her husband and his close relatives is with
an oblique motive then even if the FIR and the
chargesheet disclose the commission of a cognizable
offence the Court with a view to doing substantial justice
should read in between the lines the oblique motive of
the complainant and take a pragmatic view of the matter.
If the submission canvassed by the counsel appearing for
the Respondent No. 2 and the State is to be accepted
mechanically then in our opinion the very conferment of
the inherent power by the Cr. P.C. upon the High Court
would be rendered otiose. We are saying so for the
simple reason that if the wife on account of matrimonial
34
disputes decides to harass her husband and his family
members then the first thing, she would ensure is to see
that proper allegations are levelled in the First
Information Report. Many times the services of
professionals are availed for the same and once the
complaint is drafted by a legal mind, it would be very
difficult thereafter to weed out any loopholes or other
deficiencies in the same. However, that does not mean
that the Court should shut its eyes and raise its hands in
helplessness, saying that whether true or false, there are
allegations in the First Information Report and the
chargesheet papers disclose the commission of a
cognizable offence. If the allegations alone as levelled,
more particularly in the case like the one on hand, are to
be looked into or considered then why the investigating
agency thought fit to file a closure report against the
other co-accused? There is no answer to this at the end of
the learned counsel appearing for the State. We say so,
because allegations have been levelled not only against
the Appellant herein but even against his parents, brother
& sister. If that be so, then why the police did not deem
fit to file chargesheet against the other co-accused? It
appears that even the investigating agency was
convinced that the FIR was nothing but an outburst
arising from a matrimonial dispute.
32. Many times, the parents including the close
relatives of the wife make a mountain out of a mole.
Instead of salvaging the situation and making all possible
endeavours to save the marriage, their action either due
to ignorance or on account of sheer hatred towards the
husband and his family members, brings about complete
destruction of marriage on trivial issues. The first thing
that comes in the mind of the wife, her parents and her
relatives is the Police, as if the Police is the panacea of all
evil. No sooner the matter reaches up to the Police, then
even if there are fair chances of reconciliation between
the spouses, they would get destroyed. The foundation of
a sound marriage is tolerance, adjustment and respecting
one another. Tolerance to each other's fault to a certain
bearable extent has to be inherent in every marriage.
Petty quibbles, trifling differences are mundane matters
and should not be exaggerated and blown out of
35
proportion to destroy what is said to have been made in
the heaven. The Court must appreciate that all quarrels
must be weighed from that point of view in determining
what constitutes cruelty in each particular case, always
keeping in view the physical and mental conditions of the
parties, their character and social status. A very technical
and hyper sensitive approach would prove to be
disastrous for the very institution of the marriage. In
matrimonial disputes the main sufferers are the children.
The spouses fight with such venom in their heart that
they do not think even for a second that if the marriage
would come to an end, then what will be the effect on
their children. Divorce plays a very dubious role so far as
the upbringing of the children is concerned. The only
reason why we are saying so is that instead of handling
the whole issue delicately, the initiation of criminal
proceedings would bring about nothing but hatred for
each other. There may be cases of genuine ill-treatment
and harassment by the husband and his family members
towards the wife. The degree of such ill-treatment or
harassment may vary. However, the Police machinery
should be resorted to as a measure of last resort and that
too in a very genuine case of cruelty and harassment. The
Police machinery cannot be utilised for the purpose of
holding the husband at ransom so that he could be
squeezed by the wife at the instigation of her parents or
relatives or friends. In all cases, where wife complains of
harassment or ill-treatment, Section 498A of
the IPC cannot be applied mechanically. No FIR is
complete without Sections 506(2) and 323 of the IPC.
Every matrimonial conduct, which may cause annoyance
to the other, may not amount to cruelty. Mere trivial
irritations, quarrels between spouses, which happen in
day-to-day married life, may also not amount to cruelty.
33. Lord Denning, in Kaslefsky v. Kaslefsky, [1950] 2 All
ER 398 observed as under:--
"When the conduct consists of direct action by one
against the other, it can then properly be said to be aimed
at the other, even though there is no desire to injure the
other or to inflict misery on him. Thus, it may consist of a
display of temperament, emotion, or perversion whereby
36
the one gives vent to his or her own feelings, not intending
to injure the other, but making the other the object-the
butt-at whose expense the emotion is relieved."
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 when the justifiable
remonstrances of the innocent party provoke resentment on
the part of the other, which evinces itself in actions or
words actually or physically directed at the innocent party."
34. What constitutes cruelty in matrimonial matters has
been well explained in American Jurisprudence 2nd edition Vol.
24 page 206. It reads thus:--
"The question whether the misconduct complained of
constitute cruelty and the like for divorce purposes is
determined primarily by its effect upon the particular person
complaining of the acts. The question is not whether the
conduct would be cruel 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 under one set of
circumstances may be extreme cruelty under another set of
circumstances."
(Emphasis supplied)
37
35. In one of the recent pronouncements of this
Court in Mahmood Ali v. State of U.P., 2023 SCC OnLine
SC 950, authored by one of us (J.B. Pardiwala, J.), the
legal principle applicable apropos Section 482 of
the CrPC was examined. Therein, it was observed that
when an accused comes before the High Court, invoking
either the inherent power under Section 482 CrPC or the
extraordinary jurisdiction under Article 226 of
the Constitution, to get the FIR or the criminal
proceedings quashed, essentially on the ground that such
proceedings are manifestly frivolous or vexatious or
instituted with the ulterior motive of wreaking
vengeance, then in such circumstances, the High Court
owes a duty to look into the FIR with care and a little
more closely. It was further observed that it will not be
enough for the Court to look into the averments made in
the FIR/complaint alone for the purpose of ascertaining
whether the necessary ingredients to constitute the
alleged offence are disclosed or not as, in frivolous or
vexatious proceedings, the court owes a duty to look into
many other attending circumstances emerging from the
record of the case over and above the averments and, if
need be, with due care and circumspection, to try and
read between the lines.
36. For the foregoing reasons, we have reached to
the conclusion that if the criminal proceedings are
allowed to continue against the Appellant, the same will
be nothing short of abuse of process of law & travesty of
justice. This is a fit case wherein, the High Court should
have exercised its inherent power under Section 482 of
the Cr. P.C. for the purpose of quashing the criminal
proceedings.
37. Before we close the matter, we would like to invite
the attention of the Legislature to the observations made by this
Court almost 14 years ago in Preeti Gupta (supra) as referred to
in para 26 of this judgment. We once again reproduce paras 34
and 35 respectively as under:
"34. Before parting with this case, we would like to
observe that a serious relook of the entire provision is
warranted by the legislation. It is also a matter of common
38
knowledge that exaggerated versions of the incident are
reflected in a large number of complaints. The tendency of
over implication is also reflected in a very large number of
cases.
35. The criminal trials lead to immense sufferings for
all concerned. Even ultimate acquittal in the trial may also
not be able to wipe out the deep scars of suffering of
ignominy. Unfortunately a large number of these complaints
have not only flooded the courts but also have led to
enormous social unrest affecting peace, harmony and
happiness of the society. It is high time that the legislature
must take into consideration the pragmatic realities and
make suitable changes in the existing law. It is imperative
for the legislature to take into consideration the informed
public opinion and the pragmatic realities in consideration
and make necessary changes in the relevant provisions of
law. We direct the Registry to send a copy of this judgment
to the Law Commission and to the Union Law Secretary,
Government of India who may place it before the Hon'ble
Minister for Law and Justice to take appropriate steps in the
larger interest of the society."
38. In the aforesaid context, we looked into Sections 85
and 86 respectively of the Bharatiya Nyaya Sanhita, 2023,
which is to come into force with effect from 1st July, 2024 so as
to ascertain whether the Legislature has seriously looked into
the suggestions of this Court as made in Preeti Gupta (supra).
Sections 85 and 86 respectively are reproduced herein below:
"Husband or relative of husband of a woman
subjecting her to cruelty.
85. 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.
Cruelty defined.
86. For the purposes of section 85, "cruelty"
means--
(a) any wilful conduct which is of such a nature as is
likely to drive the woman to commit suicide or to
39
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."
39. The aforesaid is nothing but verbatim reproduction of
Section 498A of the IPC. The only difference is that the
Explanation to Section 498A of the IPC, is now by way of a
separate provision, i.e., Section 86 of the Bhartiya Nyaya
Sanhita, 2023.
40. We request the Legislature to look into the issue as
highlighted above taking into consideration the pragmatic
realities and consider making necessary changes in Sections 85
and 86 respectively of the Bharatiya Nyaya Sanhita, 2023,
before both the new provisions come into force."
(Emphasis supplied)
The similarity between the facts in the case at hand and the facts
before the Apex Court can be found not in one paragraph but in
several paragraphs.
19. A little before the said judgment, the Apex Court in the
case of ABHISHEK v. STATE OF MADHYA PRADESH2 has held as
follows:
".... .... ....
2
2023 SCC OnLine SC 1083
40
12. The contours of the power to quash criminal
proceedings under Section 482 Cr. P.C. are well defined. In V.
Ravi Kumar v. State represented by Inspector of Police, District
Crime Branch, Salem, Tamil Nadu [(2019) 14 SCC 568], this
Court affirmed that where an accused seeks quashing of the
FIR, invoking the inherent jurisdiction of the High Court, it is
wholly impermissible for the High Court to enter into the factual
arena to adjudge the correctness of the allegations in the
complaint. In Neeharika Infrastructure (P). Ltd. v. State of
Maharashtra [Criminal Appeal No. 330 of 2021, decided on
13.04.2021], a 3-Judge Bench of this Court elaborately
considered the scope and extent of the power under
Section 482 Cr. P.C. It was observed that the power of quashing
should be exercised sparingly, with circumspection and in the
rarest of rare cases, such standard not being confused with the
norm formulated in the context of the death penalty. It was
further observed that while examining the FIR/complaint,
quashing of which is sought, the Court cannot embark upon an
enquiry as to the reliability or genuineness or otherwise of the
allegations made therein, but if the Court thinks fit, regard
being had to the parameters of quashing and the self-restraint
imposed by law, and more particularly, the parameters laid
down by this Court in R.P. Kapur v. State of Punjab (AIR 1960
SC 866) and State of Haryana v. Bhajan Lal [(1992) Supp (1)
SCC 335], the Court would have jurisdiction to quash the
FIR/complaint.
13. Instances of a husband's family members filing
a petition to quash criminal proceedings launched against
them by his wife in the midst of matrimonial disputes are
neither a rarity nor of recent origin. Precedents aplenty
abound on this score. We may now take note of some
decisions of particular relevance. Recently,
in KahkashanKausar alias Sonam v. State of
Bihar [(2022) 6 SCC 599], this Court had occasion to deal
with a similar situation where the High Court had refused
to quash a FIR registered for various offences, including
Section 498A IPC. Noting that the foremost issue that
required determination was whether allegations made
against the in-laws were general omnibus allegations
which would be liable to be quashed, this Court referred
to earlier decisions wherein concern was expressed over
the misuse of Section 498A IPC and the increased
41
tendency to implicate relatives of the husband in
matrimonial disputes. This Court observed that false
implications by way of general omnibus allegations made
in the course of matrimonial disputes, if left unchecked,
would result in misuse of the process of law. On the facts
of that case, it was found that no specific allegations
were made against the in-laws by the wife and it was
held that allowing their prosecution in the absence of
clear allegations against the in-laws would result in an
abuse of the process of law. It was also noted that a
criminal trial, leading to an eventual acquittal, would
inflict severe scars upon the accused and such an
exercise ought to be discouraged.
14. In Preeti Gupta v. State of Jharkhand [(2010) 7 SCC
667], this Court noted that the tendency to implicate the
husband and all his immediate relations is also not uncommon
in complaints filed under Section 498A IPC. It was observed that
the Courts have to be extremely careful and cautious in dealing
with these complaints and must take pragmatic realities into
consideration while dealing with matrimonial cases, as
allegations of harassment by husband's close relations, who
were living in different cities and never visited or rarely visited
the place where the complainant resided, would add an entirely
different complexion and such allegations would have to be
scrutinised with great care and circumspection.
15. Earlier, in Neelu Chopra v. Bharti [(2009) 10 SCC
184], this Court observed that the mere mention of statutory
provisions and the language thereof, for lodging a complaint, is
not the 'be all and end all' of the matter, as what is required to
be brought to the notice of the Court is the particulars of the
offence committed by each and every accused and the role
played by each and every accused in the commission of that
offence. These observations were made in the context of a
matrimonial dispute involving Section 498A IPC.
16. Of more recent origin is the decision of this Court
in Mahmood Ali v. State of U.P. (Criminal Appeal No. 2341 of
2023, decided on 08.08.2023) on the legal principles
applicable apropos Section 482 Cr. P.C. Therein, it was observed
that when an accused comes before the High Court, invoking
either the inherent power under Section 482 Cr. P.C. or the
42
extraordinary jurisdiction under Article 226 of the Constitution,
to get the FIR or the criminal proceedings quashed, essentially
on the ground that such proceedings are manifestly frivolous or
vexatious or instituted with the ulterior motive of wreaking
vengeance, then in such circumstances, the High Court owes a
duty to look into the FIR with care and a little more closely. It
was further observed that it will not be enough for the Court to
look into the averments made in the FIR/complaint alone for the
purpose of ascertaining whether the necessary ingredients to
constitute the alleged offence are disclosed or not as, in
frivolous or vexatious proceedings, the Court owes a duty to
look into many other attending circumstances emerging from
the record of the case over and above the averments and, if
need be, with due care and circumspection, to try and read
between the lines.
17. In Bhajan Lal (supra), this Court had set out, by way
of illustration, the broad categories of cases in which the
inherent power under Section 482 Cr. P.C. could be exercised.
Para 102 of the decision reads as follows:
'102. In the backdrop of the interpretation of the
various relevant provisions of the Code under Chapter XIV
and of the principles of law enunciated by this Court in a
series of decisions relating to the exercise of the
extraordinary power under Article 226 or the inherent
powers under Section 482 of the Code which we have
extracted and reproduced above, we give the following
categories of cases by way of illustration wherein such
power could be exercised either to prevent abuse of the
process of any court or otherwise to secure the ends of
justice, though it may not be possible to lay down any
precise, clearly defined and sufficiently channelised and
inflexible guidelines or rigid formulae and to give an
exhaustive list of myriad kinds of cases wherein such power
should be exercised.
(1) Where the allegations made in the first information
report or the complaint, even if they are taken at
their face value and accepted in their entirety do not
prima facie constitute any offence or make out a
case against the accused.
(2) Where the allegations in the first information report
and other materials, if any, accompanying the FIR do
43
not disclose a cognizable offence, justifying an
investigation by police officers under Section 156(1)
of the Code except under an order of a Magistrate
within the purview of Section 155(2) of the Code.
(3) Where the uncontroverted allegations made in the
FIR or complaint and the evidence collected in
support of the same do not disclose the commission
of any offence and make out a case against the
accused.
(4) Where, the allegations in the FIR do not constitute a
cognizable offence but constitute only a non-
cognizable offence, no investigation is permitted by a
police officer without an order of a Magistrate as
contemplated under Section 155(2) of the Code.
(5) Where the allegations made in the FIR or complaint
are so absurd and inherently improbable on the basis
of which no prudent person can ever reach a just
conclusion that there is sufficient ground for
proceeding against the accused.
(6) Where there is an express legal bar engrafted in any
of the provisions of the Code or the Act concerned
(under which a criminal proceeding is instituted) to
the institution and continuance of the proceedings
and/or where there is a specific provision in the Code
or the Act concerned, providing efficacious redress
for the grievance of the aggrieved party.
(7) Where a criminal proceeding is manifestly attended
with mala fide and/or where the proceeding is
maliciously instituted with an ulterior motive for
wreaking vengeance on the accused and with a view
to spite him due to private and personal grudge.'
18. Applying the aforestated edicts to the case on hand,
we may take note of certain glaring inconsistencies and
discrepancies. Though Bhawna had earlier alleged that her
mother-in-law, Kusum Lata, and her brother-in-law, Abhishek,
had taken away all her jewellery after her marriage on the
pretext of safekeeping, she specifically stated in her deposition
before the Family Court, Narsinghpur, in Civil Suit No. 153A of
2015, that her entire stridhan jewellery was with Nimish and in
spite of repeated demands, he was not returning it to her.
44
Further, during her cross-examination therein, she admitted
that she had made a complaint to the High Court against
Abhishek. The complaint was styled as an anonymous one, but
Bhawna voluntarily owned up to being its author. This aspect
bears out her animosity against her in-laws and more
particularly, Abhishek.
19. The most significant aspect to be taken note of
presently is that Bhawna admittedly parted ways with her
matrimonial home and her in-laws in February, 2009, be it
voluntarily or otherwise, but she did not choose to make a
complaint against them in relation to dowry harassment till the
year 2013. Surprisingly, FIR No. 56 dated 09.02.2013 records
that the occurrence of the offence was from 02.07.2007 to
05.02.2013, but no allegations were made by Bhawna against
the appellants after she left her matrimonial home in February,
2009. Significantly, Bhawna got married to Nimish on
02.07.2007 at Indore and went to Mumbai with him on
08.07.2007. Her interaction with her in-laws thereafter seems to
have been only during festivals and is stated to be about 3 or 4
times. Sourabh, an architect, was stationed at Delhi since the
year 2007 and no specific allegation was ever made against him
by Bhawna. In fact, she merely made a general allegation to the
effect that he also tortured her mentally and physically for
dowry. No specific instance was cited by her in that regard or as
to how he subjected her to such harassment from Delhi.
Similarly, Abhishek became a judicial officer 6 or 7 months after
her marriage and seems to have had no occasion to be with
Bhawna and Nimish at Mumbai. His exposure to her was only
when she came to visit her in-laws during festivals. Surprisingly,
Bhawna alleges that at the time of his own marriage, Abhishek
demanded that Bhawna and her parents should provide him
with a car and Rs. 2 lakhs in cash. Why he would make such a
demand for dowry, even if he was inclined to commit such an
illegality, from his sister-in-law at the time of his own marriage
is rather incongruous and difficult to comprehend. Further, the
fact that Bhawna confessed to making a vicious complaint
against Abhishek to the High Court clearly shows that her
motives were not clean insofar as her brother-in-law, Abhishek,
is concerned, and she clearly wanted to wreak vengeance
against her in-laws. The allegation levelled by Bhawna against
her mother-in-law, Kusum Lata, with regard to how she taunted
45
her when she wore a maxi is wholly insufficient to constitute
cruelty in terms of Section 498A IPC.
20. We may also note that Bhawna herself claimed that
Nimish came to her brother's wedding in 2012, but she has no
details to offer with regard to any harassment for dowry being
meted out to her by her mother-in-law and her brothers-in-law
after 2009. As noted earlier, even for that period also, her
allegations are mostly general and omnibus in nature, without
any specific details as to how and when her brothers-in-law and
mother-in-law, who lived in different cities altogether, subjected
her to harassment for dowry.
21. Most damaging to Bhawna's case is the fact that she
did nothing whatsoever after leaving her matrimonial home in
February, 2009, and filed a complaint in the year 2013 alleging
dowry harassment, just before her husband instituted divorce
proceedings.
22. Given the totality of the facts and
circumstances, we are of the considered opinion that
Bhawna's allegations against the appellants, such as they
are, are wholly insufficient and, prima facie, do not make
out a case against them. Further, they are so farfetched
and improbable that no prudent person can conclude that
there are sufficient grounds to proceed against them. In
effect, the case on hand falls squarely in categories (1)
and (5) set out in Bhajan Lal (supra). Permitting the
criminal process to go on against the appellants in such a
situation would, therefore, result in clear and patent
injustice. This was a fit case for the High Court to
exercise its inherent power under Section 482 Cr. P.C. to
quash the FIR and the consequential proceedings."
(Emphasis supplied)
In both the afore-mentioned judgments the Apex Court was
considering the offence against the husband. The Apex Court holds
that if ingredients of Section 498A are not met, the proceedings
46
against the husband or the family members could not be permitted
to be continued. Therefore, the law as laid down by the 3 Judge
Bench of the Apex Court in ABHISHEK and ACHIN GUPTA would
prevail over the judgment rendered at an earlier point in time.
20. Considering all the aforementioned judgment, the Apex
Court in a later judgment in DARA LAKSHMI NARAYANA v.
STATE OF TELANGANA3, has held as follows:
".... .... ....
8. Learned counsel for the appellants submitted that the
appellants never demanded any dowry from respondent No. 2.
Respondent No. 2 in fact used to leave the matrimonial house
uninformed. In fact, on one such occasion when she left the
matrimonial house on 03.10.2021, appellant No. 1 made a
police complaint on 05.10.2021. When the police found her
whereabouts, she was allegedly living with someone.
Respondent No. 2 after being counselled, returned to her
matrimonial house. It was further submitted that respondent
No. 2 addressed a letter dated 11.11.2021 to the Deputy
Superintendent of Police, Thirupathur Sub Division requesting to
close the complaint made by appellant No. 1 wherein she
admitted that she had left her matrimonial house after
quarrelling with appellant No. 1 because of one Govindan, with
whom she was talking over the phone for the past ten days
continuously. She also stated that she would not repeat such
acts in future. Learned counsel for the appellants further
submitted that respondent No. 2 again left the matrimonial
house leaving appellant No. 1 and children behind. It was
submitted that having no other option, appellant No. 1 issued a
legal notice dated 13.12.2021 to respondent No. 2 seeking
3
2024 SCC OnLine SC 3682
47
divorce by mutual consent. Therefore, it was argued that only as
a counterblast, the present FIR has been lodged by respondent
No. 2. on 01.02.2022. Insofar as appellant Nos. 2 to 6 are
concerned, learned counsel for the appellants submitted that no
specific allegation is made against them in the FIR. It was
further submitted that appellant Nos. 2 to 6 did not live in the
matrimonial house of the couple and have been unnecessarily
dragged into this case. Therefore, it was submitted that the
present case is a fit case for quashing the FIR and accordingly
prayed that this Court may set-aside the impugned order dated
16.02.2022 and quash the criminal proceedings pending against
the appellants herein arising out of FIR No. 82 of 2022 dated
01.02.2022.
9. Per contra, the learned counsel for the respondent-
State submitted that on a perusal of the FIR, it would reveal
that a prima facie case has been made out against the
appellants. It was submitted that, as per the FIR, respondent
No. 2 was harassed both physically and mentally for want of
additional dowry and that appellant No. 1 used to come home in
a drunken state and used to have an illicit affair with one
Mounika. Learned counsel for the respondent-State submitted
that the father of respondent No. 2 was examined as LW3 who
stated in the examination that at the time of marriage, he gave
Rs. 10 lakhs and 10 tolas of gold as dowry. It was further
submitted that after the marriage, appellant No. 1 used to
harass and abuse respondent No. 2 and appellant Nos. 2 to 6
used to provoke and instigate appellant No. 1. Hence, learned
counsel for the respondent-State argued that the High Court,
vide impugned order, was justified in declining to quash the
criminal proceedings pending against the appellants herein
arising out of FIR No. 82 of 2022 dated 01.02.2022 and prayed
for the dismissal of the present appeal as well.
10. Having heard the learned counsel for the respective
parties and having perused the material on record, the only
question that arises for our consideration is whether FIR No. 82
of 2022, dated 01.02.2022, lodged against the appellants herein
should be quashed.
11. In State of Haryana v. Bhajan Lal, 1992 Supp (1)
SCC 335 ("Bhajan Lal"), this Court formulated the parameters
under which the powers under Section 482 of the CrPC could be
48
exercised. While it is not necessary to revisit all the parameters,
a few that are relevant to the present case may be set out as
under:
"102. In the backdrop of the interpretation of the
various relevant provisions of the Code under Chapter XIV
and of the principles of law enunciated by this Court in a
series of decisions relating to the exercise of the
extraordinary power under Article 226 or the inherent
powers under Section 482 of the Code which we have
extracted and reproduced above, we give the following
categories of cases by way of illustration wherein such
power could be exercised either to prevent abuse of the
process of any court or otherwise to secure the ends of
justice, though it may not be possible to lay down any
precise, clearly defined and sufficiently channelised and
inflexible guidelines or rigid formulae and to give an
exhaustive list of myriad kinds of cases wherein such power
should be exercised.
(1) Where the allegations made in the first
information report or the complaint, even if they are taken
at their face value and accepted in their entirety do not
prima facie constitute any offence or make out a case
against the accused.
x xx
(7) Where a criminal proceeding is manifestly
attended with mala fide and/or where the proceeding is
maliciously instituted with an ulterior motive for wreaking
vengeance on the accused and with a view to spite him due
to private and personal grudge."
12. In the instant case, the allegations in the FIR are
under Section 498A of the IPC and Sections 3 and 4 of the
Dowry Act.
13. Section 498A of the IPC deals with offences
committed by the husband or relatives of the husband
subjecting cruelty towards the wife. The said provision reads 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,
49
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 purpose 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."
14. Further, Sections 3 and 4 of the Dowry Act talk about
the penalty for giving or taking or demanding a dowry.
"3. Penalty for giving or taking dowry.--
(1) If any person, after the commencement of this
Act, gives or takes or abets the giving or taking of dowry,
he shall be punishable with imprisonment for a term which
shall not be less than five years, and with fine which shall
not be less than fifteen thousand rupees or the amount of
the value of such dowry, whichever is more.
Provided that the Court may, for adequate and
special reasons to be recorded in the judgment, impose a
sentence of imprisonment for a term of less than five years.
(2) Nothing in sub-section (1) shall apply to, or in
relation to,--
(a) presents which are given at the time of a marriage to
the bride without any demand having been made in
that behalf:
Provided that such presents are entered in a list
maintained in accordance with the rules made under this
Act;
50
(b) presents which are given at the time of a marriage to
the bridegroom without any demand having been
made in that behalf:
Provided that such presents are entered in a list
maintained in accordance with the rules made under this
Act:
Provided further that where such presents are made
by or on behalf of the bride or any person related to the
bride, such presents are of a customary nature and the
value thereof is not excessive having regard to the financial
status of the person by whom, or on whose behalf, such
presents are given.
4. Penalty for demanding dowry.-- If any person
demands, directly or indirectly, from the parents or other
relatives or guardian of a bride or bridegroom, as the case
may be, any dowry, he shall be punishable with
imprisonment for a term which shall not be less than six
months, but which may extend to two years and with fine
which may extend to ten thousand rupees:
Provided that the Court may, for adequate and
special reasons to be mentioned in the judgment, impose a
sentence of imprisonment for a term of less than six
months."
15. An offence is punishable under Section 498A of
the IPC when a husband or his relative subjects a woman
to cruelty, which may result in imprisonment for a term
extending up to three years and a fine. The Explanation
under Section 498A of the IPC defines "cruelty" for the
purpose of Section 498A of the IPC to mean any of the
acts mentioned in clauses (a) or (b). The first limb of
clause (a) of the Explanation of Section 498A of the IPC,
states that "cruelty" means any wilful conduct that is of
such a nature as is likely to drive the woman to commit
suicide. The second limb of clause (a) of the Explanation
of Section 498A of the IPC, states that cruelty means any
wilful conduct that is of such a nature as to cause grave
injury or danger to life, limb or health (whether mental or
physical) of the woman. Further, clause (b) of the
Explanation of Section 498A of the IPC states that cruelty
would also include harassment of the woman where such
51
harassment is to coerce 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.
16. Further, Section 3 of the Dowry Act deals with
penalty for giving or taking dowry. It states that any person who
engages in giving, taking, or abetting the exchange of dowry,
shall face a punishment of imprisonment for a minimum of five
years and a fine of not less than fifteen thousand rupees or the
value of the dowry, whichever is greater. Section 4 of the Dowry
Act talks of penalty for demanding dowry. It states that any
person demanding dowry directly or indirectly, from the parents
or other relatives or guardians of a bride or bridegroom shall be
punishable with imprisonment for a term which shall not be less
than six months, but which may extend to two years and with
fine which may extend to ten thousand rupees.
17. The issue for consideration is whether, given the facts
and circumstances of the case and after examining the FIR, the
High Court was correct in refusing to quash the ongoing criminal
proceedings against the appellants arising out of FIR No. 82 of
2022 dated 01.02.2022 under Section 498A of the IPC and
Sections 3 and 4 of the Dowry Act.
18. A bare perusal of the FIR shows that the
allegations made by respondent No. 2 are vague and
omnibus. Other than claiming that appellant No. 1
harassed her and that appellant Nos. 2 to 6 instigated
him to do so, respondent No. 2 has not provided any
specific details or described any particular instance of
harassment. She has also not mentioned the time, date,
place, or manner in which the alleged harassment
occurred. Therefore, the FIR lacks concrete and precise
allegations.
19. Further, the record reveals that respondent No.
2 on 03.10.2021 left the matrimonial house leading
appellant No. 1 to file a police complaint on 05.10.2021.
When the police officials traced her, respondent No. 2
addressed a letter dated 11.11.2021 to the Deputy
Superintendent of Police, Thirupathur Sub Division
requesting to close the complaint made by appellant No.
52
1. In the said letter, respondent No. 2 admitted that she
left her matrimonial house after quarrelling with
appellant No. 1 as she was talking to a person by name
Govindan over the phone for the past ten days
continuously. She further admitted that appellant No. 1
was taking good care of her. She also stated that she will
not engage in such actions in future. Despite that, in
2021 itself, respondent No. 2 once again left the
matrimonial house leaving appellant No. 1 and also her
minor children.
20. Losing hope in the marriage, appellant No. 1
issued a legal notice to respondent No. 1 seeking divorce
by mutual consent on 13.12.2021. Instead of responding
to the said legal notice issued by appellant No. 1,
respondent No. 2 lodged the present FIR 82 of 2022 on
01.02.2022 registered with Neredmet Police Station,
Rachakonda under Section 498A of the IPC and Sections
3 and 4 of the Dowry Act.
21. Given the facts of this case and in view of the timing
and context of the FIR, we find that respondent No. 2 left the
matrimonial house on 03.10.2021 after quarrelling with
appellant No. 1 with respect to her interactions with a third
person in their marriage. Later she came back to her
matrimonial house assuring to have a cordial relationship with
appellant No. 1. However, she again left the matrimonial house.
When appellant No. 1 issued a legal notice seeking divorce on
13.12.2021, the present FIR came to be lodged on 01.02.2022
by respondent No. 2. Therefore, we are of the opinion that the
FIR filed by respondent No. 2 is not a genuine complaint rather
it is a retaliatory measure intended to settle scores with
appellant No. 1 and his family members.
22. Learned counsel for respondent No. 1 State
contended that a prima facie case was made out against the
appellants for harassing respondent No. 2 and demanding dowry
from her. However, we observe that the allegations made by
respondent No. 2 in the FIR seem to be motivated by a desire
for retribution rather than a legitimate grievance. Further, the
allegations attributed against the appellants herein are vague
and omnibus.
53
23. Respondent No. 2 has not contested the present case
either before the High Court or this Court. Furthermore, it is
noteworthy that respondent No. 2 has not only deserted
appellant No. 1 but has also abandoned her two children as well,
who are now in the care and custody of appellant No. 1. The
counsel for the appellants has specifically submitted that
respondent No. 2 has shown no inclination to re-establish any
relationship with her children.
24. Insofar as appellant Nos. 2 to 6 are concerned, we
find that they have no connection to the matter at hand and
have been dragged into the web of crime without any rhyme or
reason. A perusal of the FIR would indicate that no substantial
and specific allegations have been made against appellant Nos.
2 to 6 other than stating that they used to instigate appellant
No. 1 for demanding more dowry. It is also an admitted fact
that they never resided with the couple namely appellant No. 1
and respondent No. 2 and their children. Appellant Nos. 2 and 3
resided together at Guntakal, Andhra Pradesh. Appellant Nos. 4
to 6 live in Nellore, Bengaluru and Guntur respectively.
25. A mere reference to the names of family members in
a criminal case arising out of a matrimonial dispute, without
specific allegations indicating their active involvement should be
nipped in the bud. It is a well-recognised fact, borne out of
judicial experience, that there is often a tendency to implicate
all the members of the husband's family when domestic disputes
arise out of a matrimonial discord. Such generalised and
sweeping accusations unsupported by concrete evidence or
particularised allegations cannot form the basis for criminal
prosecution. Courts must exercise caution in such cases to
prevent misuse of legal provisions and the legal process and
avoid unnecessary harassment of innocent family members. In
the present case, appellant Nos. 2 to 6, who are the members of
the family of appellant No. 1 have been living in different cities
and have not resided in the matrimonial house of appellant No.
1 and respondent No. 2 herein. Hence, they cannot be dragged
into criminal prosecution and the same would be an abuse of the
process of the law in the absence of specific allegations made
against each of them.
26. In fact, in the instant case, the first appellant and his
wife i.e. the second respondent herein resided at Jollarpeta,
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Tamil Nadu where he was working in Southern Railways. They
were married in the year 2015 and soon thereafter in the years
2016 and 2017, the second respondent gave birth to two
children. Therefore, it cannot be believed that there was any
harassment for dowry during the said period or that there was
any matrimonial discord. Further, the second respondent in
response to the missing complaint filed by the first appellant
herein on 05.10.2021 addressed a letter dated 11.11.2021 to
the Deputy Superintendent of Police, Thirupathur Sub Division
requesting for closure of the said complaint as she had stated
that she had left the matrimonial home on her own accord
owing to a quarrel with the appellant No. 1 because of one
Govindan with whom the second respondent was in contact over
telephone for a period of ten days. She had also admitted that
she would not repeat such acts in future. In the above
conspectus of facts, we find that the allegations of the second
respondent against the appellants herein are too far-fetched and
are not believable.
27. We find that the High Court noted that there were
also allegations against respondent No. 2 and matrimonial
disputes are pending between the parties. Therefore, the High
Court came to the conclusion that custodial interrogation of the
appellants was not necessary and protected the personal liberty
of the appellants directing the Investigation Officer not to arrest
the appellants till the completion of the investigation and filing
of the charge-sheet. Albeit the said findings and observations,
the High Court ultimately refused to quash the criminal
proceedings against the appellants.
28. The inclusion of Section 498A of the IPC by way of an
amendment was intended to curb cruelty inflicted on a woman
by her husband and his family, ensuring swift intervention by
the State. However, in recent years, as there have been a
notable rise in matrimonial disputes across the country,
accompanied by growing discord and tension within the
institution of marriage, consequently, there has been a growing
tendency to misuse provisions like Section 498A of the IPC as a
tool for unleashing personal vendetta against the husband and
his family by a wife. Making vague and generalised allegations
during matrimonial conflicts, if not scrutinized, will lead to the
misuse of legal processes and an encouragement for use of
arm-twisting tactics by a wife and/or her family. Sometimes,
55
recourse is taken to invoke Section 498A of the IPC against the
husband and his family in order to seek compliance with the
unreasonable demands of a wife. Consequently, this Court has,
time and again, cautioned against prosecuting the husband and
his family in the absence of a clear prima facie case against
them.
29. We are not, for a moment, stating that any woman
who has suffered cruelty in terms of what has been
contemplated under Section 498A of the IPC should remain
silent and forbear herself from making a complaint or initiating
any criminal proceeding. That is not the intention of our
aforesaid observations but we should not encourage a case like
as in the present one, where as a counterblast to the petition for
dissolution of marriage sought by the first appellant-husband of
the second respondent herein, a complaint under
Section 498A of the IPC is lodged by the latter. In fact, the
insertion of the said provision is meant mainly for the protection
of a woman who is subjected to cruelty in the matrimonial home
primarily due to an unlawful demand for any property or
valuable security in the form of dowry. However, sometimes it is
misused as in the present case.
30. In the above context, this Court in G.V. Rao v. L.H.V.
Prasad, (2000) 3 SCC 693 observed as follows:
"12. There has been an outburst of matrimonial
disputes in recent times. Marriage is a sacred ceremony, the
main purpose of which is to enable the young couple to
settle down in life and live peacefully. But little matrimonial
skirmishes suddenly erupt which often assume serious
proportions resulting in commission of heinous crimes in
which elders of the family are also involved with the result
that those who could have counselled and brought about
rapprochement are rendered helpless on their being arrayed
as accused in the criminal case. There are many other
reasons which need not be mentioned here for not
encouraging matrimonial litigation so that the parties may
ponder over their defaults and terminate their disputes
amicably by mutual agreement instead of fighting it out in a
court of law where it takes years and years to conclude and
in that process the parties lose their "young" days in
chasing their "cases" in different courts."
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31. Further, this Court in Preeti Gupta v. State of
Jharkhand (2010) 7 SCC 667 held that the courts have to be
extremely careful and cautious in dealing with these complaints
and must take pragmatic realties into consideration while
dealing with matrimonial cases. The allegations of harassment
by the husband's close relatives who had been living in different
cities and never visited or rarely visited the place where the
complainant resided would have an entirely different
complexion. The allegations of the complainant are required to
be scrutinized with great care and circumspection.
32. We, therefore, are of the opinion that the impugned
FIR No. 82 of 2022 filed by respondent No. 2 was initiated with
ulterior motives to settle personal scores and grudges against
appellant No. 1 and his family members i.e., appellant Nos. 2 to
6 herein. Hence, the present case at hand falls within category
(7) of illustrative parameters highlighted in Bhajan Lal.
Therefore, the High Court, in the present case, erred in not
exercising the powers available to it under Section 482 CrPC and
thereby failed to prevent abuse of the Court's process by
continuing the criminal prosecution against the appellants."
(Emphasis supplied)
The Apex Court holds that the crime registered by the wife was
initiated with ulterior motives to settle scores and grudges against
the husband and the family members.
21. In the light of the law laid down by the Apex Court in the
afore-quoted judgments, permitting further proceedings against the
husband would become an abuse of the process of law and putting
a premium on the litigative persistence and arm-twisting tactics of
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the wife. Therefore, Writ Petition No.28591 of 2023 deserves to be
allowed and the crime set side.
22. In Writ Petition No.3809 of 2024 the complainant is the
husband. The petitioners are the wife and other members. It
springs from a complaint registered on 25-11-2023 by the husband.
The complaint becomes a crime in Crime No.176 of 2023 for
offences punishable under Sections 420, 406, 403, 109, 384 and 34
of the IPC. The ingredients as projected by the petitioner/husband
against the wife in Crime No.176 of 2023 are that the wife went on
extorting money on one pretext or the other and has filed false
affidavit before the Court for the purpose of getting maintenance
and has taken maintenance up to ₹1/- crore as on today. In the
considered view of the Court, there cannot be an offence of
extortion when the wife initiates proceedings for maintenance and
the concerned Court grants maintenance. Those are legal
proceedings, pursuant to which the husband is legally bound to pay,
unless it is altered or modified by the superior Court. Insofar as the
offence of cheating and criminal breach of trust is concerned
between the husband and the wife for the purpose of payment of
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maintenance, there cannot be a fact that the husband has lured the
wife or the wife has lured the husband into any act that would
become an ingredient of Section 420 or 406 of the IPC. Therefore,
no offence against the wife or other accused in Crime No.176 of
2023 is made out. Therefore, both these petitions deserve to
succeed and the respective crimes obliterated, failing which it would
become an abuse of the process of law and result in miscarriage of
justice.
23. For the aforesaid reasons, the following:
ORDER
(i) Both the Writ Petitions are allowed.
(ii) FIR in Crime No.295 of 2023 pending before the 7th
Additional Chief Metropolitan Magistrate Court,
Bengaluru City stands quashed.
(iii) FIR in Crime No.176 of 2023 pending before the 6th
Judicial Magistrate First Class, Mangalore City also
stands quashed.
(iv) It is made clear that the observations made in the
course of the order are only for the purpose of
consideration of the cases of petitioners in both writ
petitions under Section 482 of Cr.P.C. and the same
shall not bind or influence any other proceedings
between the same parties or others.
Sd/-
______________________
JUSTICE M.NAGAPRASANNA
Bkp
CT:MJ
