197

CHAPTER VI

CRUELTY AGAINST WOMEN IN INDIA AND

PENAL PROVISIONS

1. Introduction :

It is not ironical that when Indian mythology places

women on a very high pedestal and they are worshiped and
honoured-Goddess of Learning is Saraswati; of wealth Laxmi;
of Power Parvati – we adopt double standards in so far as her
guaranteed rights are concerned. There has been over the
decades an alarming decline in moral values all around and
that today is a great challenge which we face particularly in
our country. In the name of progress and advancement, we are
losing out our moral values. It is rather sad that while we
keep celebrating woman’s rights in all spheres, we show no
concern for her honour and her dignity. It is sorry reflection
on the attitude of indifference of the society. 1
In common parlance and according to the dictionary
meaning, a person who is disposed to inflict pain, is pleased
at suffering, void of pity, or merciless is called cruel. Thus, in
the matrimonial context, the protagonists of the indissoluble
or sacramental character of marriage defined the cruel
conduct of a spouse as actual personal violence or conduct
causing a reasonable apprehension of it, or such a course of
treatment as endangers life, limb or health and renders
cohabitation unsafe. 2 Cruelty according to them verged on
inhuman and barbarous treatment' resulting from the

1. Suman Nalwa and Hari Dev Kohli: Law Relating to Dowry, Dowry
Death, Cruelty to women & Domestic Violence, V, Edition, 2011.
2. Justice J.D. Kapoor, Laws and Flaws in Marriages, 66 (2002).
198

merciless and savage disposition of a spouse. Since there had

been an age old bias against the female spouse, who was
meant to give her husband her services and submit herself to
him as to the Lord, the husband's conduct was not treated as
cruel unless it either caused actual bodily harm, endangering
life, or reasonable apprehension of it. The element of
humanity and human relations was irrelevant. 3

Section 498A has been engrafted on to the Indian Penal

Code, 1860, in a situation where the national conscience was
disturbed by the intensity and volume of instances of wife
beating, bride burning and cruelty of different degrees and
variations directed against women that necessitated a law to
punish such acts. Whereas religion and custom prescribed
marriage to be a bond-founded on love and the concept of
sharing, local experience indicated, in some strata of society
particularly, that it had been transformed in to a licence to
ill-treat. Law as an instrument of fostering social order is
also required to be used as a channel for doing good and
conversely for curbing evil. 4
The extent of the evil has been commented upon by the
Joint Committee of Houses to examine the working of the
Dowry Prohibition Act, 1961. Cases of cruelty by the husband
and relations of the husband which culminate in suicide by,
or murder of, the help less woman concerned, constitute only
a small fraction of the cases involving such cruelty. It is,
therefore, proposed to amend the Indian Penal Code, 1860,
the Code of Criminal Procedure, 1973 and the Indian
Evidence Act, 1872, suitably to deal effectively not with cases
of dowry deaths but also cases of cruelty to married women

3. Ibid.
4. RA Nelson's Indian Penal Code, 4621, Vol. IV, Ninth Edition, 2003.
 199

by their-in-laws. 5 Ultimately a new chapter in the form of

chapter XX-A was added in the Indian Penal Code, 1860, with
only one section, Section 498A, by the Criminal Law (Second
Amendment) Act, 1983 with effect from December 25, 1983.
(i) Dictionary meaning of Cruelty :
The new Webster's Dictionary 6 has given the meaning of
the word 'cruel' as follows :
Disposed to give pain to other in body or
mind; destitute of pity, compassion or
Kindness; applied to persons; exhibiting or
proceeding from cruelty, causing pain, grief
or distress; inhuman, tormenting, vexing. 7

However, the ordinary dictionary meaning of 'cruelty'

would not be applicable to hold that 'cruelty' figuring in the
Explanation appended to Section 498A, is vague. 8 It is not
every harassment/every type of cruelty, that would attract
Section 498A. It must be established that the beating and
harassment was with a view to force the wife to commit
suicide or to fulfil illegal demands of the husband and the in–
laws. 9 The expression 'cruelty' postulates such treatment as
to cause reasonable apprehension in the mind of the wife
that her living with the husband will be harmful and
injurious to her life. Therefore, to decide the question of
cruelty the relevant factors are the matrimonial relationship
between the husband and the wife, their cultural and status

5. Dr. Hari Singh Gour's Penal Law of India, 4688, Vol. IV, Edition,
2003.
6. College Edition, 1998.
7. As quoted in Sunagala L Hegde (Smt.) v. Laxminarayan Anant Heyde
& Another's, 2003 Cri.L.J. 1418 (Kant).
8. Krishan Lal & Ors. v. Union of India, 1994 Cri.LJ 3472 (P&H) (DB).
9. Sarla Prabhakar Waghmare (Smt). v. State of Maharashtra & Ors.
1990 Cri.LJ 407 (Bom).
200

in life, their state of health, their interaction in daily life

which dominate the aspect of cruelty. 10
According to Black’s Law Dictionary, 'The intentional and
malicious infliction of mental or physical suffering on a living
creature, esp. a human: abusive treatment: outrage'. 11
In Wharton’s Concise Law Dictionary the cruelty is
defined as: – 'It is contemplated as a conduct of such type
which endangers the living of the petitioner with the
respondent. Cruelty consists of acts which are dangerous to
life, limb or health. Cruelty for the purpose of the act means
where one spouse has so treated the other and manifested
such feelings towards her or him as to have inflicted bodily
injury, or to have caused reasonable apprehension of bodily
injury suffering or to have injured health. Cruelty may be
physical or mental. Mental cruelty is the conduct of other
spouse which causes mental suffering or fear to the
matrimonial life of the other'. 12
(ii) Definition of Cruelty under Indian Penal Code, 1860
Section 498A, reads as under:
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
there years and shall also be liable to fine.

Explanation – For the purposes of this section, 'cruelty'

means —

10. Sarojakshah Shankaran Nayor & others v. State of Mahrashtra, 1995

CriLJ 340 (Bom).
11. 405, First Reprint Edition 2004
12. 260, Fifteenth Edition (concise) 2009.
 201

(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 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. 13

2. Scope and object of the Section, 498A :

Section 498A, was grafted specifically to deal firmly and
effectively with all cases of cruelty and harassment to
women. 14 It is the horrifying number of atrocities committed
in the name of dowry and unfortunate number of wife
burning incidents that brought Section 498A on the statute
book. The section, however, is specially worded in order to
encompass even the class of cruelty committed through the
litigate process. 15 The definition of 'cruelty' figuring in the
Explanation appended under Section 498A, is not vague as
the perusal of clause (a) would show that the prosecution has
to establish firstly the wilful conduct of the offender,
secondly that the nature of such conduct was likely to drive a
woman to commit suicide or to cause grave injury or danger
to life or limb (whether mental or physical). Thus, on proof of
these facts to the satisfaction of the court under the
circumstances of a particular case the husband or relatives
of the husband shall be presumed to have treated the woman
with cruelty. The wilful conduct certainly implies the
establishing of a motive to treat such a woman with cruelty.
The gravity of such conduct is also reflected in the wording of

13. The Indian Penal Code, 1860.

14. Madhuri Mukund Chitnis (Smt.) v. Mukund Martend Chitmis & Another
1992 CriLJ 111 (Bom) (DB), (1991) 1 RCR 505 (Bom) (DB).
15. Ibid.
202

clause (a) of the Explanation that such conduct should be

likely to drive a woman to commit suicide or to cause grave
injury or danger to life limb or health (whether mental or
physical) of a woman. consequently, the definition under
clause (a) can not be said to be vague as it rules out minor
differences between the wife and husband or the latter's
relatives. 16 Clause (b), the definition of cruelty pertains of
harassment of a married woman with a view to coercing her
or any person related to her to meet the unlawful demand of
dowry or for any property or valuable security or on account
of her failure of any person related to her to meet such a
demand. Thus, on the given facts of a particular case the
court has first to form an opinion that as a matter of facts
such harassment has close nexus for coercing a married
woman to meet the unlawful demand of her husband or
relatives of the husband qua any property or valuable
security. Thereafter the presumption of treating her with
cruelty will arise. 17 Obviously, the legislature has defined the
term 'cruelty' while keeping in view the object which was
required to be achieved. Thus, the ordinary dictionary
meaning of 'cruelty' would not be applicable to hold that it is
vague being interpreted in so many ways. 18 Section 498A, has
no retrospectives application, 19 and does not violate Article
14 of the Constitution of India. 20 The men rea is an essential

16. Supra note 4 at 4627.

17. Ibid.
18. Supra note
19. K. Subramaniam v. State (1988) 3 Crimes 633 (Mad); Arvind Dhawan
v. State of Haryana (1998) 3 RCR (Cri) 593 (P&H).
20. Balkrishna Pandurang Moghe v. State of Maharashtra, 1998 CriLJ
4496 (Bom) (DB); (1998) 3 Mah LJ 331 (Bom).
 203

ingredient of offence under Section 498A. 21 The refusal to

return 'streedhan' despite repeated requests attracts the
continuing offence, so fresh limitation will start running from
the day the wife makes a demand from the accused for the
return of 'streedhan'. 22 It is not every harassment of every
type of cruelty that would attract Section 498A. It must be
established that the beating and harassment was with a view
to force the wife to commit suicide or to fulfil illegal demands
of her husband and in-laws. 23
The object of Chapter XXA, Indian Penal Code, 1860, is
to prevent the torture to a woman by her husband or by
relatives of her husband. The increase in cases of harassment
and death of young married women as a result of unlawful
demands of dowry by their husbands or parent-in-laws
resulted in Amendment the Dowry Prohibition Act, 1961 and
the Dowry Prohibition (Amendment) Act, 1986. In 1983, by
the Criminal Law (Second Amendment) Act, Section 498A has
been added with a view to punishing a husband and his
relatives who harass or torture the wife in order to coerce her
to her relatives to satisfy unlawful demands of dowry. 24
3. Essential ingredients of Section 498A, Indian Penal
Code, 1860 :
The following are the essential ingredients of Section
498A.

21. Veerudu v. State of Andhra Pradesh 1989 CriLJ (NOC) 52 (Andhra

Pradesh), (1989) 2 Andh LJ 70; Savitri Devi v. Ramesh Chand & Ors,
2003 CriLJ 2759 (Delhi).
22. Renu & Ors v. State of Haryana 1991 CriLJ 2049 (P&H), (1990) 1
Chd LR (Cri) 561 (P&H).
23. Sarla Prabhakar Waghmare (Smt.) v. State of Mahrashtra, 1990 CriLJ
407 (Bom).
24. Brijlal, AIR 1989 SC 1661 : (1989) Supp (2) SCC 680.
204

(i) The woman must be married : To attract the offence

under Section 498A, the woman must be married. In the case
of Suprabha v. State of Kerala, 25 court held that in order to
attract an offence under Section 498A, the subsistence of a
valid marriage is required.
Where the complainant, wife of the first accused, after
marriage was maltreated, beaten, starved and abused with a
view to extort more and more money and articles and she left
her matrimonial home and went to stay at her parental home
where she also gave birth to a son, and she was continuously
being threatened that her son would be taken away unless
she met their demands even by compelling her parents to sell
their immovable property, there was cruelty as contemplated
under Section 498A. 26
The word cruelty postulates such a treatment as to
cause reasonable apprehension in the mind of the wife that
her living with the husband will be harmful and injurious of
her life. Therefore, to decide the question of cruelty the
relevant factor are the matrimonial relationship between the
husband and wife, their cultural status, temperament, state
of health, their interaction in this daily life which dominante
the aspect of cruelty. Where the deceased wife belonged to a
respectable orthodox family and the husband was of highly
suspicious nature and made life difficult for deceased by
deter meaning and insulting her, calling her prostitute, not
allowing her to meet others, and denying her family life and
comforts, the trial court was justified in convicting the
accused under Section 498A. 27

25. 2013 (4) RCR (Criminal) 248 (Kerala).

26. Inder Raj Malik v. Sunita Malik, 1986 CriLJ 1510 (Del).
27. Supra note 10.
 205

(a) Presumption of marriage – Duty of the Court :

It is the duty of the court to give effect to the legislative
amendment which was directed towards punishing husbands
who indulge in atrocities against their spouses and in the
absence of evidence to the contrary all these provisions will
have to be applied on the footing that the marriage is
presumed to be a valid one and the parties are presumed to
be husband and wife unless the contrary is established.
Unless this view is enforced it will lead to an atrocious
situation with double injustice being done to the victim
woman who are led through ceremonies of marriage and
imparted the status of wife in situation where they are not
aware of possible impediments and if those impediments are
upheld to the benefit of the wrong doer husband, it would
lead to the unthinkable and untenable conclusion of allowing
a party to take advantage of his own wrong. 28 That is not the
scheme of the law and consequently, the provisions both of
the Indian Penal Code, 1860 and the Dowry Prohibition Act,
1961 would apply in all cases where there is evidence of a
marriage between the parties unless and until it is
established that the marriage in question was a void
marriage. Even as far as the latter position is concerned
drawing a parallel with the provisions relating to legitimacy of
children in the case of void or voidable marriages, it would,
in the interest of justice, perhaps be permissible to construe
that even in cases where a marriage was declared void at a
point of time after the commission of the offence that the
court would still treat the parties as having deemed to be

28. Supra note 4 at 4634.

206

husband and wife as on the date of commission of the

offence. 29
(b) Wife :
For the purpose of Section 498A, which is peculiar to
Indian families, the victim spouse is always the 'wife' and the
guilty is the husband and his relatives both near or distant,
living together or separately. 30 If on the date of the alleged
cruelty, the information/victim ceased to be the wife of the
accused on the basis of pronouncement of talaq by a written
divorced deed and factum of talaq is admitted by the wife and
allegation of cruelty being false and concocted, the FIR as
well as the charge sheet against the accused is liable to be
quashed. 31 In the case of Syed Hyder Hussain & others v.
State of Andhra Pradesh & another, 32 it was held that a 'Shia'
male is permanently prohibited to the woman whom he has
divorced by triple 'Talaq'. 33 Therefore, when both the parties
are 'Shias' and undisputedly the accused-husband had
divorced the complainant (wife), even if the complainant and
accused were living together, they can not be called as
husband and wife, so the provisions of Section 498A and
Sections 4 and 6 of the Dowry Prohibition Act, 1961 are not
applicable to these facts. 34
(c) Second wife :
The prohibitory words 'Woman….of her marriage' and
'…by her husband' used in Section 304B and 'husband of a
woman' used in Section 498A, undoubtedly cover only a

29. State of Karnataka v. Shivraj & Another, 2002 CriLJ 2741 (Kant)
(DB).
30. Savitri Devi v. Ramesh Chand, 2003 CriLJ 2759 (Delhi).
31. Azaz Hussain v. J & K State, 2003 CriLJ 2582 (J&K).
32. 2002 CriLJ 3602 (Andhr Pradesh).
33. Rasid Ahmad v. Mt. Anisa Khatun, AIR 1932 PC 25.
34. Syed Hyder Hussain & others v. State of Andhar Pradesh & another,
2002 CriLJ 3602 (Andhra Pradesh) Supra note.
 207

legally wedded woman and her husband having a valid

marriage, and they also fit in the object and the policy of the
two amending statutes (by which these two sections were
inserted, and as such their import cannot be extended so as
to include a woman married infact but whose marriage is void
in law. 35 However, the expression, 'wife' in Section 498A must
receive the same interpretation as in Section 125, Criminal
Procedure Code, 1973. If there is no evidence that the first
marriage was legally performed in accordance with Hindu
rites, it cannot be said that the victim (alleged second wife)
was not the wife of the accused. 36
(d) Mistress :
There is no reason why Section 498A, can not be
applied to a case where a person inflicts such cruelty and
harassment as to lead his mistress to commit suicide. 37
However, if the prosecution evidence at the best indicates
that the deceased woman was living in the house of the
accused as his woman but there was no evidence to indicate
that she had married the accused or that her earlier marriage
was not subsisting on that date to infer a relationship
between the deceased and the accused husband and wife, the
requirement of Section 498A, is not fulfilled. 38
(ii) She must be subjected to cruelty or harassment :
A new dimension has been given to the concept of
cruelty. The Explanation to Section 498A provides that any
wilful conduct which is of such a nature as is likely to drive a
woman to commit suicide would constitute cruelty. Such

35. Ramnarayan & others v. State of Madhya Pradesh (1998) 3 Crimes

147 (Madhya Pradesh).
36. Madhusudan Hazara v. State, 1990 CriLJ (NOC) 138 (Cal) (DB).
37. Vungarai Tedukondalu v. State of Andhra Pradesh, 1988 CriLJ
(Andhra Pradesh) (DB).
38. Madari v. State of Madhya Pradesh (1998) 3 CCR 606.
208

wilful conduct which is likely to cause grave injury or danger

to life, limb or health (whether mental or physical of the
woman) would also amount to cruelty. Harassment of the
women 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 would also constitute
cruelty. 39 A bare perusal shows that the word 'cruelty'
encompasses any of the following elements:
(a) any 'wilful' conduct which is of such a nature as is
likely to drive the woman to commit suicide; or
(b) any 'wilful' conduct which is likely to cause grave
injury to the woman; or
(c) any 'wilful' act which is likely to cause danger to life,
limb or health whether physical or mental of the
woman. 40
The cruelty as contemplated under Section 498A,
denotes the state of conduct, which is painful and distressing
to the victim. 41 The basic purport of the statutory provision
is to avoid 'cruelty' which stands defined by attributing a
specific statutory meaning attached there to as noticed here
in before. Two specific instances have been taken note of in
order to ascribe a meaning to the word 'cruelty' as is
expressed by the legislature. Whereas, Explanation (a)
involves three specific situations viz.,
(i) to drive the woman to commit suicide; or
(ii) to cause grave injury; or

39. Shoba Rani v. Madhukar Reddy, AIR 1988 SC 121; Ravindra Pyarelal
Bidlan & others v. State of Maharashtra, 1993 Cri LJ 3019 (Bom).
40. Supra note 30.
41. D. Surender Reddy & Others v. State of Andhra Pradesh 2002 CriLJ
2611 (Andhra Pradesh).
 209

(iii) danger to life, limb or health, both mental and

physical, and thus involving a physical torture
or atrocity,
in Explanation (b) there is absence of physical injury
but the legislature thought it fit to include only coercive
harassment which obviously as the legislative intent
expressed is equally heinous to match the physical injury;
whereas one is patent, the others one is latent but equally
serious in terms of the provisions of the statue since the
some would also embrace the attributes to cruelty in terms of
Section 498A. 42
In the case of Birbal & others v. State of Haryana, 43
mother-in-law alleged to have taunted deceased for bringing
clothes of inferior quality at the time of marriage. Court held
that, these are casual unintentional wears and tears of family
affairs prevalent in our society. Every such so-called
harassment simpliciter does not amount to cruelty.
Accused (husband of deceased) alleged to have
demanded Rs. 50,000/- from brother of deceased (not from
deceased) to purchase a tractor. Court held that, mere
demand would not constitute legally required cruelty against
deceased within meaning of Section 498A. 44
In the case of State v. Sohan Lal, 45 allegation that
husband and in-laws of bride treated the bride with cruelty
and gave beatings. Allegations vague and generic. The generic
statements that deceased was given beatings without
specifications as to how the beating were given, whether any

42. Girdhar Shankar Tawade v. State of Maharashtra, 2002 CriLJ 2814

(SC).
43. 2014(1) Criminal Court Cases 446 (P&H).
44. Ibid.
45. 2012(2) RCR (Criminal) 307 (Delhi) (DB).
210

object/weapon was used to give those beatings and similarly

without the details as to how the deceased was harassed
would be insufficient to hold that the deceased was treated
with cruelty within the meaning of Section 498A or that the
deceased ended her life on account of the said cruelty.
In the case of Mahesh Kumar Dhawan v. State of M.P. 46
Harassment to wife by husband in UAE and FIR lodged in
India. Prior sanction of Central Government before enquiry
not obtained. In circumstances registration of FIR and
investigation illegal.
In the case of Devinder alias Kala Ram v. State of
Haryana, 47 court held that it was contended and shown by
wife of brother of accused that she was living separately. She
could not be acquitted on the ground that she was living
separately when there was evidence that she also caused
harassment to the deceased in connection with demand of
dowry.
In the case of Geet Mehrotra v. State of U.P., 48 FIR under
Section 498A and Dowry Prohibition Act, 1961, lodged by wife
alleging that her husband his parents, brother and sister
tortured and harassed her by making demand of dowry.
Proceedings against brother and sister quashed and held
that:
(i) There was just casual reference of their names in
FIR.
(ii) There was allegation that both were involved in
physical and mental torture of complainant, but not
a single incident was mentioned against them.

46. 2012(3) RCR (Criminal) 261 (MP) (Gwalior Bench).

47. 2012 (4) RCR (Criminal) 979 SC.
48. 2012(4) RCR (Criminal) 812 (SC).
 211

(iii) A fact borne out of experience cannot be overlooked

that there is a tendency to involve the entire family
members of the household in the domestic quarrel
taking place in a matrimonial dispute.
In the case of Mahesh Kumar Dhawan v. State of M.P., 49
husband contracting second marriage by suppressing the fact
of first marriage. First wife would not be legally wedded wife.
Court held that provisions of Section 498A, would not apply.
Where the wife was harassed, tortured, assaulted, never
appreciated, loved or allowed to be happy, there was
continuous and incessant harassment driving her to commit
suicide, it was held all this amounted to cruelty. 50
In the case of Kantilal Martaji Pandor v. State of
Gujarat, 51 husband (Accused) contracting second marriage
but allowed his first wife to enter the house of second wife.
Does not amount to a cruel act.
(ii) Such cruelty or harassment must have been shown
either by husband of the woman or by the relative of
her husband
Section 498A, punishes a husband of a woman or any
relative of the husband subjecting her to cruelty. The section
contemplates that the offender must be either the husband of
a woman or a relative of his and must subject such woman to
cruelty. The concept of cruelty under this section has a two-
fold dimensions; first, it is a wilful conduct of such a nature
as to drive a woman to such a desperate situation as to
commit, suicide or grave injury or danger to life, limb or
physical or mental health of the woman, and secondly, it is a
harassment of the woman with a view to coerce either her or

49. 2012(3) RCR (Criminal) 261 (MP) Gwalior Bench.

50. State v. Vasant Shankar Mahasane, 1993 CriLJ 1134 (Bom).
51. 2013(3) RCR (Criminal) 939 (SC).
212

any person related to her to meet unlawful demand for any

property or valuable security or is on account of she or her
relative having failed to meet such demand. 52
A new section, Section 113 relating to presumption as
to abetment of suicide by a married woman, has been added
in the Indian Evidence Act, 1872. The section states that
when the question is whether the commission of suicide by a
woman had been abetted by her husband or any relative of
her husband and it is shown that she had committed suicide
within a period of seven years from the date of her marriage
and that her husband or such relative of her husband had
subjected her to cruelty, the court may presume, having
regard to all the other circumstances of the case, that such
suicide had been abetted by her husband or by such relative
of her husband. 53
Where a married woman was asked by her husband and
other relatives of his to give them her jewellery and valuables
so that the marriage of her husband's sister could take place
but the woman refused to do so and the matter was not
further pursued, it was held that Section 498A, did not
apply. 54
Drinking habits of the husband and his coming home
late at night have not been held to amount to cruelty. 55 But
where the same is accompanied with beating and demanding
dowry, Section 498A is attracted. 56 Where the wife was being
harassed for yet out standing items of dowry, and the
demands were met and the matter was settled thereafter, and
there was no evidence of further demand for dowry or torture,

52. T. Bhattacharyya, The Indian Penal Code, 725, Sixth Edition, 2010.
53. Ibid.
54. Tapan Pal v. State, 1992 CriLJ 1017 (Cal).
55. Jagdish Chander v. State, 1988 CriLJ 1048 (P&H).
56. P.B. Bikshapathi v. State, 1989 CriLJ 1186 (AP).
 213

but the wife committed suicide within one and a half months
of the settlement of the matter, the conviction of the accused
under this section deserve to be set aside. 57
Mere demand of dowry is an offence under Section
498A, by virtue of part(b) of the explanation, but for the
purposes of Sections 2(1) and 4 of the Dowry Prohibition Act,
1961 it is necessary that dowry must have been either given
or agreed to be given. 58 The Andhra Pradesh High Court has
even held that this section is attracted to cruelty against a
mistress leading to her suicide. 59
In the case of Preeti Gupta and another v. State of
Jharkhand, 60 a complaint was field by wife against husband
and his relatives (i.e. sister-in-law and unmarried brother-in-
law of complainant) regarding harassment and demand of
dowry. No specific allegations were made against the two
relatives. Appellants were residing at a different place. They
neither visited place of incident nor lived with complainant
and her husband. It was held that in view of these facts the
indication of relatives in complaint was meant to harass and
humiliate husband's relatives. Therefore, permitting
complainant to purse complaint would be an abuse of process
of law. Therefore, it was held liable to be quashed.
It was also held that members of the Bar should treat
such complaint as basic human problem and must make
serious endeavour to help parties in arriving at amicable
solution of that problem.
In the case of Rajinder Singh v. State of Haryana, 61
death of bride occurred at matrimonial home within nine
months of marriage. Death occurred otherwise than under

57. Samir Samanta v. State, 1993 CriLJ 134 (Cal).

58. Shankar Prasad v. State, 1991 CriLJ 639 (Cal).
59. Vamgarala Yedukondala v. State, 1988 CriLJ 1538 (AP).
60. (2010) IV CriLJ 4303 (SC).
61. 2013(3) RCR (Criminal) 722 (SC).
214

normal circumstances. Accused hurriedly cremated the body

without informing the parents of deceased. Trust worthy oral
evidence available that deceased was subjected to
harassment by her husband and other accused relatives in
connection with demand for dowry just prior to death. Trial
court rightly drew an inference that the accused-appellants
were guilty of the offence, under Section 304B, 498A and
201, Indian Penal Code, 1860.
(iv) Proof of the offence under Section 498A :
In order to prove the offence under Section 498A, the
prosecution has to prove that:
(a) the accused is the husband or the relative of
the husband of the victim woman, and
(b) he subjected the woman to cruelty by –
(i) any wilful conduct which was to such a
nature as was 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;
(ii) harassment of the woman 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. 62

If there is no mention in the FIR about any demand of

dowry by the husband and the evidence of the prosecution
witness is also vague, the offence under Section 498A, is not
proved. 63
If the wife died within one year of marriage by
consuming poison and there was no evidence to prove that
there was any ill-treatment or cruelty on the deceased after

62. Supra note 4 at 4661.

63. Keshav Chandra Panda v. State, 1995 CriLJ 174 (Ori).
 215

her marriage for or on account of non fulfilment of dowry

demand soon before her death or any point of time, the
deceased during her stay at her parents place never stated
about the alleged ill-treatment or harassment, the dying
declaration was not worthy of credence as the same was
made by her in an unconscious state of mind, the charges
under Sections 304B and 498A, were found not proved. 64
Where, no evidence was produced by the prosecution to show
that the deceased wife was treated with cruelty immediately
prior to the occurrence by the accused, and the defence
version was that the deceased had taken a poisonous
substance for effecting an abortion, appeared to be probable,
the conviction of the accused under Section 498A was not
found proper. 65
The non-production of the letter written by the deceased
wife about ill-treatment is not sufficient to disprove the
prosecution case. 66 Each and every aspect of cruelty inflicted
on the deceased need not to be mentioned either in the FIR or
spoken to by every witness put into the witness box. The
inflection of cruelty is a continuous course of conduct which
is fairly evidence and if one or the other of the witnesses have
omitted to mention any one part of infliction of such cruelty,
it would only show their retentive memory and cannot wife
put the case of inflection of cruelty altogether. 67
Even if the accused has demanded Rs. 1500 from his
wife to be brought from her parents, it will not bring the case
either within the ambit of Sections 304B or 498A, in the

64. S. Tripat Patra and another's v. State of Orissa, 2003 CriLJ 1591
(Ori).
65. Lalmani Mahato v. State of Bihar, 2003 CriLJ (NOC) 1 (Jharkhand).
66. Ram Kumar and another v. State of Haryana, 1999 CriLJ 462 (SC).
67. Shunmugasundaram v. State, 1997 CriLJ 499 (Mad) (DB).
216

absence of evidence that she was being treated with cruelty

on account of such demand. 68
(c) Nature of proof : Relevant inference from the facts
and circumstances of the case is permissible and the
court can raise presumption on the basis of evidence
on record. 69
(d) Standard of proof : Though initial burden to prove
cruelty or harassment is on the prosecution, and the
prosecution must prove beyond reasonable doubt the
guilt of the accused, the court can take into account
the facts and circumstances in the light of the
provisions of Section 113 A of the Evidence Act,
1872. The test of proof should be of a reasonable
man. Standard of proof must be of a prudent man. 70
(i) Standard of proof higher in Criminal Law than Civil
Law
The principles are that –
– the standards of proof of cruelty are higher in degree in
criminal law than in civil law under the matrimonial
cases;
– the intention or mens rea on the part of one spouse to
injure the other is not necessary element of cruelty in
civil law for matrimonial causes while it is an essential
element in criminal law;
– it is enough if cruelty is proved by preponderance of
probabilities in civil law while in criminal trial the

68. State of Himachal Pradesh v. Yograj, 1997 CriLJ 2033 (Himachal

Pradesh) (DB).
69. State v. Orilal Jaiswal, AIR 1994 SC 1418.
70. Ibid.34
 217

conduce of cruelty has to be proved beyond all

reasonable about; 71
– it is immaterial in civil law whether the respondent's
conduct was aimed at the other spouse or is due to
warranted indifference attributable, perhaps, to
selfishness or laziness while it is very much material in
criminal proceedings; and
– for the relief of matrimonial cause in civil law the
conduct of the spouse need not necessarily result in
danger of life limb or health, but a reasonable
apprehension of such a danger is enough, whereas
Section 498, contemplates such a conduct besides being
'wilful' to result in the likelihood of driving the woman
to commit suicide to cause grave injury or danger to a
life, limb or health. 72
For the purpose of Section 498A, which is peculiar to
Indian families victim spouse is always the 'wife' and guilty is
the husband and his relatives near or distant, living together
or separately. Ingredients of cruelty as contemplated under
Section 498A are of much higher and sterner degree than the
ordinary concept of cruelty applicable and available for the
purposes of dissolution of marriage, i.e., divorce in
constituting 'cruelty' contemplated by Section 498A, the acts
or conduct should be either such that may cause danger to
life, limb or health or cause 'grave' injury or of such a degree
that may drive a woman to commit suicide. Not only that
such acts or conduct should be 'wilful', i.e., intentional.
Similarly, to invoke provisions of Section 498A, the tests are

71. Supra note 4 at 4645.

72. C. Veerudu & another v. State of Andhra Pradesh, 1989 CriLJ (NOC)
52.
218

of stringent nature and intention is the most essential factor.

The only test is that acts or conduct of guilty party should
have the sting or effect of causing grave injury to the woman
or is likely to cause danger of life, limb or physical or mental
health. 73
(e) Presumption :
Section 113A of the Evidence Act, 1872, as introduced
by the Criminal Law (Second Amendment) Act, 1983 enables
a court to presume that a commission of suicide by a woman
has been abetted by her husband or by his relatives if two
conditions are satisfied :
(i) that the woman had committed the suicide within a
period of seven years from her marriage; and
(ii) that the husband or his relatives had subjected her
to cruelty. 74
In the case of Sherish Hardenia & Others v. State of MP
& Another, 75 accused allegated by cruelty and abetment of
suicide, death after seven years of marriage. The court held
that, it cannot be said that no case can possibly be made out
under sections 306 and 498A, after a marriage has crossed
seven years' period. It is only statutory presumption that
stands, removed thereby also shifting onerous burden from
shoulders of accused to that of prosecution.
(f) Mens rea :
The requirement of proving that soon before her death
the woman was subjected to cruelty or harassment by her
husband or any relation of her husband for or in connection
with any demand of dowry clearly shows that the legislature

73. Supra note 30.

74. Gurbachan Singh v. Satpal Singh, AIR 1990 SC 209.
75. 2014 (1) Criminal court cases 302 (SC).
 219

has imbibed the necessary mens rea for the offence of dowry
death. 76
The intent to injure is the most important element of
cruelty contemplated under Section 498A. 77 The sole
constituent of the offence under Section 498A is 'cruelty'
which mean wilful conduct.' The word wilful contemplates
obstinate and deliberate behaviour on the part of the offender
for it to amount to cruelty. Thus 'Mens rea' is an essential
ingredient of the offence. 78 Though intention to cause injury
is not an essential ingredient regard may be had as to the
actual intention or knowledge on the part of the offending
spouse as to actuator probable effect whether it would cause
injury to physical or mental health. Again acts or conduct
should be judged from the angle of a person possessing
ordinary intellectual capabilities. 79 Lord Denning a celebrated
and legendary judge of this century says : 80
When the conduct consists of direct action by
one against the other, it can then property 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 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

76. Supra note 8.

77. Rajamal & Others v. State, 1993 CriLJ 3029 (Mad) (PB)
78. C. Veerudu & Another v. State of Andhra Pradesh, 1989 CriLJ (NOC)
52 (Andhra Pradesh); Ch Narender Reddy v. State of Andhra Pradesh,
2000 CriLJ 4068 (Andhra Pradesh).
79. Supra note 30.
80. Kaslepsky v. Kaslepsky (1950) 2 All ER 398.
220

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 order, such as
drunkenness, gambling or crime, then it can only property 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, specially when the one spouse knows, or it has
already been brought to his notice, when the consequence
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. 81 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 remonstrance's of the innocent party provoke
resentment on the part of the other, which evidence itself in
actions or words actually or physically directed at the
innocent party. 82
(g) Limitation :
Offences relating to cruelty on women are of a serious
nature. Again, such offences are continuing offence, and
hence, the provisions of Section 468 of the Code of Criminal
Procedure, 1973 would not apply to them and a complaint in

81. Supra note 4 at 4630.

82. Id. at 4631.
 221

respect of such offences can not be dismissed on the ground

that it is time barred. 83
The Supreme Court held that the essence of the offence
in Section 498A being cruelty, it is a continuing offence and
on each occasion on which the victim was subjected to
cruelty, she would have a new starting point of limitation.
Section 473 of Criminal Procedure Code, 1973, enables the
court to take cognizance of an offence after the period of
limitation, inter alia, if it is satisfied on the facts and in the
circumstances of the case that it is necessary so to do in the
interests of justice. The court held that the expression in the
interest of justice' in Section 473 does not mean in the
interest of prosecution. What the court has to see is 'interest
of justice' and the interest of justice demands that the court
should protect the oppressed and punish the
oppressor/offender. In complaints under Section 498A, the
wife will invariably be oppressed. According to the Supreme
Court, it is, therefore, appropriate for the courts, in case of
delayed complaints, to construe liberally Section 473,
Criminal Procedure Code, 1973, in favour of a wife who is
subjected to cruelty if on the facts and in the circumstances
of the case, it is necessary so to do in the interests of
justice. 84
When Section 498A is brought to use in the case of
cruelty on women, the law of limitation is not that rigid so as
to non-suit the aggrieved wife. A fair close of liberalities is
warranted, so that the law as an instrument comes in aid of
the aggrieved due to gender in equalities. In that case, matter
was remanded back to the High Court with a direction to

83. Vanka Radhamanohari v. Vanka Venkata Reddy, (1993) 3 SCC 4.

84. Arun Vyas v. Anita Vyas (1999) 4 SCC 690.
222

grant leave considering that refusal to grant leave was on

ground that the complaint for offences under Sections 420
and 498A was belated by two years. 85
In the case of Udai Shankar Awasthi v. State of U.P., 86
Court said that starting point of limitation would be the last
act of cruelty and held :
(i) Approaching the court at a belated stage for
a rightful cause, or even for the violation of
the fundamental rights, has always been
considered as a good ground for its rejection
at the threshold.
(ii) In case a representation is made by the
person aggrieved and the same is rejected by
the competent statutory authority, and such
an order is communicated to the person
aggrieved, making repeated representations
will not enable the party to explain the delay.

4. Constitutional Validity of Section 498A :

In the case of Inder Raj v. Sunita, 87 it was contended
that Section 498A of the Indian Penal Code, 1860, was
violative of Article 14 of the Indian Constitution inasmuch as
it gave an arbitrary power to the police as well as to the
court. The word 'cruelty' occurring in the said provision was
very vague. Though defined in Clause(b) of the Explanation, it
says if there is harassment for obtaining some property or
valuable security from a wife or her relative, it amounts to
cruelty. The word 'harassment' was equally vague and as
such any person could be arbitrarily hauled up for
committing an act of harassment. It was further contended
that Section 498A, offended against the principle of 'double
jeopardy' enshrined in Article 20 of the Constitution

85. Vijaya v. Laxmanrao (1998) 8 SCC 415.

86. 2013 (2) RCR (Criminal) 503 (SC).
87. Supra note 26.
 223

inasmuch as demand of dowry or any property was

punishable both under Section 4, of the Dowry Prohibition
Act, 1961, because in the latter mere demand of dowry is
punishable and existence of element of cruelty is not
necessary. Section 498A deals with aggravated form of the
offence. If, inter alia, punishes such demands of property or
valuable security from the wife or her relative as are coupled
with cruelty, to her. Hence a person can be prosecuted in
respect of both the offences punishable under Section 4 of
the Dowry prohibition Act, 1961, and Section 498A, Indian
Penal Code, 1860. there is no question of giving any arbitrary
power to the police as well as to the courts. The word 'cruelty'
is well defined and its import is well known. The import of
word 'harassment' is also very well known and there can not
be any arbitrary exercise of power in interpreting that word.
In fact many words occur in many provisions of law and they
are to be interpreted by the courts. The power given to the
Court to interpret such words does not, in any way, mean
giving an arbitrary power. In fact, wide discretions have been
given to the court in the matter of interpretation of the words
occurring in the laws and also in the matter of awarding
punishments. If giving this discretion is thought to be
conferring arbitrary powers on the courts most of the
provisions of law will have to be struck down as ultra vires.
while discretion is given to punish a person for the same
offence up to ten years, it can be said that element of
arbitrariness can creep in. But it is well established principle
of law that such discretion can not be said to be arbitrary
and thus does not come into conflict with article 14 of the
224

Constitution. Section 498A is also not violative of Article

20(3) and 21 of the Constitution. 88
5. Section 498A has no retrospective application
According to the provision under Article 20(1) of the
Constitution of India, no person shall be convicted of any
offence except for violation of a law in force at the time of the
commission of the act charged as an offence, nor be
subjected to a penalty greater than that which might have
been inflicted under the law in force at the time of the
commission of the offence.
The Penal provision, therefore, can have no
retrospective effect. 89 A bare perusal of Section 498A, Indian
Penal Code, 1860, leaves no doubt that the legislature
intended the operation of this provision to be prospective in
nature and no retrospective because in the latter case, it
would have specifically stated so. Thus, these penal
provisions of Section 498A are certainly prospective in nature
and would not be attracted where the alleged act of cruelty
towards the wife by the husband or the latter's relatives took
place prior to the insertion of Section 498A. These acts may
otherwise by punishable under the then existing provisions of
the code, 90 if according to the chare-sheet, the offence of
Section 498A, was committed between 11 th March 1976 and
11 th December 1983. Chapter XXA containing Section 498A
has been introduced in the Indian Penal Code, 1860 by the
Amending Act 1983, which came into force on receipt of the
assent, of the President 20 December 1983. It is, therefore,

88. Supra note 8.

89. K. Subramanian & Ors. v. State (1988) 3 Crimes 633 (Mad); Arvind
Dhawan v. State of Haryana (1998) 3 RCR (Criminal) 593 (P&H).
90. Renu & Ors. v. State of Haryana 1991 Cri LJ 2049; Prasanna Kumar
v. Dhanlakshmi 1989 CriLJ 1829 (Mad).
 225

clear that Section 498A was not in the Indian Penal Code,
1860 at the time when the offence is said to have been
committed. 91
6. Abetment of Cruelty against women :
The offence abetment is an intentional aiding of suicide
by the husband or his relatives. When the question arises as
to whether the accused has abetted the woman in committing
suicide, the court will consider cumulative effect of all the
circumstances including the conduct of the accused, relation
between the parties, time, place or manner in which the
incident took place, etc. 92
The allegation against the accused that because he was
having doubt in his mind that his wife eloped with someone
for a particular period and so he was rarely talking to his
wife are not sufficient to hold that the act of the accused be
considered as an abetment or the accused was guilty under
Sections 498A or 306, India Penal Code, 1860. 93
In the case of Eswarachari v. State of Karnataka, 94
allegation against accused husband were abetment of suicide
and cruelty to wife. No material to show that there was any
physical harm done to deceased. However, proved that he was
continuously harassing his wife. Word 'wilful conduct' is
attracted to behaviour of accused. Both sons of accused had
deposed against their father. Sufficient evidence on record to
show that accused was giving physical and mental
harassment to deceased. Held that offence under Section
498A proved.

91. Supra note 89.

92. State v. Iqbal Singh AIR 1991 SC 1532; Gurbachan Singh v. Satpal
Singh AIR 1990 SC 209
93. Rameshbahai Dalaji Godad v. State of Gujarat 2003 Cri LJ 2445
(Guj).
94. 2013 (6) RCR (criminal) 873 (Karnatka)
226

In the case of Sherish Hardenia & others v. State of M.P.

& Another 95, accused were allegated for cruelty and abetment
of suicide, death after seven years of marriage court held
that, it cannot be said that no case can possibly be made out
under Sections 306 and 498A, after a marriage has crossed
seven years' period. It is only statutory presumption that
stands removed thereby also shifting onerous burden from
shoulders of accused to that of prosecution.
In the case of Sharadbhai Jivanlal Vaniya v. State of
Gujarat 96, prosecution version that accused (husband)
harassed the deceased by making demand of dowry. Trial
court acquitted the accused on the ground that there was no
evidence of cruelty or harassment. High court convicted the
accused on basis of a letter written by deceased to her sister-
in-law wherein deceased stated that her husband had beaten
her and asked her to take divorce. Said letter was not
produced during course of investigation and there is nothing
on record to establish its authenticity. Conviction set aside
and accused acquitted.
(i) Presumption of abetment by her husband under
Section 113-A, Evidence Act, 1872 :
Presumption under Section 113-A, Evidence Act, 1872,
could be invoked only when the prosecution has discharged
the initial onus of proving that the appellant and subjected
Shrimanthi to cruelty. Only after the prosecution discharges
this initial onus, the court may presume that such suicide

95. 2014 (1) Criminal Court Cases 302 (SC).

96. 2012 (3) RCR (criminal) 101 (SC).
 227

had been abetted by the appellant having regard to the other

circumstances. 97
Abetment is an intentional aiding of suicide by the
husband or his relatives. When the question arises as to
whether the accused has abetted the woman in committing
suicide, the court will consider cumulative effect of all the
circumstances including the conduct of the accused, relation
between the parties, time, place or manner in which the
incident took place. etc. 98
The allegation against the accused that because he was
having doubt in his mind that his wife eloped with someone
for a particular period and so he was rarely talking to his
wife are not sufficient to hold that the act of the accused be
considered as an abetment or the accused was guilty under
Section 498A or Section 306, Indian Penal Code, 1860. 99
In the case of Gurnaib Singh v. State of Punjab, 100 Court
held that cruelty or harassment sans demand of dowry which
drives the wife to commit suicide attracts the offence of
abetment of suicide under Section 306, Indian Penal Code,
1860.
In the case of Eswarachari v. State of Karnatka 101
accused allegated by abetment of suicide and cruelty to wife.
Court held that no material to show that there was any
physical harm done to deceased. However, proved that he was
continuously harassing his wife. Word 'wilful conduct' is
attracted to behaviour of accused. Both sons of accused had

97. Basappa Dutta Hegade v. State of Karnataka, 1994 CriLJ 1602 at

1603 (Knt.) Venugopal v. State of Karnataka, 1999 CriLR (SC) 60 at
61.
98. State v. Iqbal Singh, AIR 1991 SC 1532.
99. Rameshbhai Dalaji Godad v. State of Gujarat 2003 Cri LJ 2445 (Guj).
100. 2013(3) RCR (Criminal) 407 (SC).
101. Supra note 94.
228

deposed against their father. Sufficient evidence on record to

show that accused was giving physical and mental
harassment to deceased. Offence under Section 498A proved.
In the case of Sherish Hardenia & Others v. State of M.P.
& Another, 102 court held, it can not be said that no case can
possibly be made out under Section 306 read with Section
498A, Indian Penal Code, 1860, after a marriage has crossed
seven years' period. It is only statutory presumption that
stands removed thereby also shifting onerous burden from
shoulders of accused to that of prosecution.
7. Compounding of offence under Section 498A :
In matrimonial cases, that too in exceptional
circumstances where the disputes arose between the wife and
husband resulting infiling a complaint and a petition for
divorce which ultimately resulted in the form of compromise
either for divorce or for reunion, and where some of the
sections complained of are compoundable and some non-
compoundable, the High Court alone is competent, exercising
the inherent power vested in it under Section 482, Criminal
Procedure Code, 1973, to permit the parties to compound a
non-compoundable offence alongwith other compoundable
offence after being satisfied with the compromise entered into
between the parties. The Magistrate or the Sessions Judge,
who are having inherent powers have no power to accord
permission to compound a non-compoundable offence. The
application for compounding a non-compoundable offence
can be filed by either of the parties to the compromise before
the High Court.

102. Supra note 95.

 229

Considering the facts of this case the compromise in

this case has been entered into between the parties for the
benefit of their future life and also for the benefit of their
children and pursuant to the compromise all the other cases
have been withdrawn and other arrangements have sought to
be made also have been fulfilled in a part. In these
circumstances, treating it as an exceptional case, permission
can be accorded to the parties to compound the non-
compoundable offence. 103
The Courts have permitted compounding of the offence
under Section 498A. Where a wife condoned the cruelty of her
husband, they were permitted to compound the case even
though in a separate civil petition for restitution of conjugal
rights by the husband against his wife allegation of cruelty
was not proved. 104 But the Andhra Pradesh High Court has
held 105 that a wife cannot be permitted to withdraw a charge
sheet filed by the police. The Supreme Court has ruled 106
that to bring an accused within the ambit of Section 498A, it
must be proved that the woman was subjected to only such
cruelty, and cruelty of no other kind, as has been provided
under Section 498A.
In the case of Dev Raj v. State of Punjab, 107 both the
parties have desired to live in peace and harmony and carry
on with their lives without any ill will or rancour by resolving
their differences and entering into the compromise. Fit case
where there is no legal impediment in the way of the court of

103. Dauggupati Jayalakshmi v. State, 1993(3) Crimes 1117 at 1128 (AP);

Saraswati Sutradhar v. State of Tripura, 1999 CriLJ 117 at 119
(Gau).
104. State v. Gopilal, 1992 CriLJ 273.
105. Thathapadi Venkatalakshmi v. State, 1991 CriLJ 749.
106. Akula Ravinder v. State, AIR 1991 SC 1142.
107. 2012(2) RCR (Criminal) 415 (P&H).
230

exercise its inherent powers under Section 482, Criminal

Procedure Code, 1973, for quasing of the FIR in the interest
of justice. FIR quashed.
In the case of Vinay Adnani & Others v. State of U.P. &
Another, 108 parties have come to terms and have decided to
separate from each other and to obtain a decree of divorce by
mutual consent. All disputes and differences between parties
have been amicably and mutually settled. The court held
that, it is futile to permit continuation of criminal case
pending before trial court and it would simply be a waste of
time if case is permitted to continue till its logical conclusion.
Compromise has been acted upon and parties have settled all
their disputes. Application allowed.
In the case of Risal Singh v. State of Punjab, 109 during
the pendency of matter parties have amicably settled the
matter. Joint application for quashing of FIR allowed.
In the case of Jitendra Raghuvanshi v. Babita
Raghuvanshi 110 held that offence under Sections 498A and
406, Indian Penal Code, 1860, is not compoundable under
Section 320 Criminal Procedure Code, 1973. High Court has
however, power under Section 482 Criminal Procedure Code,
1973, to quash the criminal proceedings where parties
mutually settled the dispute. Section 320 of Criminal
Procedure Code, 1973, would not be a bar to the exercise of
power of quashing of proceedings. Court further held that :
(i) It is the duty of the courts to encourage genuine
settlements of matrimonial disputes, particularly, when
the same are on considerable increase. Even if the

108. 2012 (5) Lawdigital. In 526 (Allahabad): 2011 (5) RCR (Criminal)
423.
109. 2012 (5) RCR (Criminal) 512 (SC).
110. 2013(2) RCR (Criminal) 427 (SC).
 231

offence are non-compoundable, if they relate to

matrimonial disputes.
In the case of K. Srinivas Rao v. D.A. Deepa, 111 court
held that the offence under Section 498A is not
compoundable. Where, however, the parties settle the
dispute, the court will quash complaint. Court further held:
(i) High Court will quash the complaint only if
after considering all circumstances it finds
the settlement to be equitable and genuine.
(ii) The judges, with their expertise, must ensure
that this exercise does not lead to the erring
spouse using mediation process to get out of
clutches of the law.
(iii) Court to explore the possibility of settlement
through mediation in matrimonial disputes.

8. Classification of Cruelty :
In the modern law, cruelty is classified under the
following two heads:
(i) Physical cruelty :
Acts of physical violence by one spouse to another
resulting in injury to body, limb or health, or causing
reasonable apprehension of the same have been traditionally
considered as cruelty. In facts, this is the original meaning of
cruelty. What acts of physical violence will amount to cruelty
will differ from case to case, depending upon the susceptibility
and sensibility of the party concerned. In Kaushalya v.
Wisakhiram, 112 the husband ill treated the wife; beat her, so
much so that she had to go to the police to lodge a report.
Dua, J. rightly said that even though injurious on the person
were considered to be not very serious as to call for their
medical treatment, yet she had been actually ill-treated and

111. 2013(2) RCR (Criminal) 217 (SC).

112. 1961 Punj 520
232

beaten-up; this must be held to amount to cruelty. Sayal v.

Sarla 113 and Saptmi v. Jagdish 114 are cases of physical cruelty.
In the latter case, the husband constantly abused and
insulted the wife and ultimately on one day in her father’s
house he pushed her against a wall causing her bruises.
Jyotish Chandra v. Meera 115 was a case of physical cruelty
coupled with mental cruelty. (These cases have been
discussed under the previous head). It is not necessary to
prove actual danger to life; apprehension of the same is
enough. 116 Even one or two acts of physical violence are
sufficient to constitute cruelty, 117 but not an isolated
instance. 118 In Ashok v. Santosh, 119 during intercourse
(probably on account of husband’s failure to complete coitus),
the wife used to pull the flaccid penis of her husband. The
Delhi High Court held this to amount to cruelty ; as pulling of
the flaccid penis can cause extreme pain, if carelessly and
contemptuously done; such pulling of the flaccid penis is a
species of inappropriate impulse which results in excessive
pain and thus amounts to physical cruelty. Husband
indulging in unnatural carnal relationship is held to be
cruelty. 120 Roopal v. Kartarao, 121 is a case of entirely different
type. It is ironical to call it a case of cruelty. In this case, the
wife was suffering from a deadly disease (catrophic rhinitis) as
a result of which fleshy portion of her nose got putrified and
emitted a very foul smell. This made it impossible for the

113. 1961 Punj 125

114. (1969) 87 CWN 520.
115. 1970 Cal 260.
116. Kaushalya v. Mst. Ram, 1981 P&H 63; Asha v. Baldev, 1985 Del 76.
117. Laloo v. Bachu,1986 Raj 49; rani v. Lal,1988 P&H 65.
118. Vimlesh v. Sri Prakash, 1992 All 260.
119. 1983 del 63.
120. Vimit Joglekar v. Vaishali Joglekar, 1998 Bom 73.
121. 1970 J&K 158.
 233

husband to have sexual intercourse with her or even to enjoy

her company. The court held that since this has resulted in
the frustration of the very purpose of marriage, though in no
way was the wife responsible for it, but the husband too could
not help either, it amounted to cruelty.
(ii) Mental cruelty :
'Greater suffering results from Psychological causes then
bodily harm.' 122
Ideas of male chauvinism and the subjection of women,
emanting from the indissoluble character of marriage,
coloured the concept of cruelty for a long time. However, half a
century later, modern developments expanded the concept
from a doctrine of danger to undefinable limits, and the old
definition became a relic. The intense bias against women,
reflected in Sir George Lee’s dictum that no wife is entitled to
a divorce unless it appears she is a person of good temper and
has always behaved well and dutifully to her husband: was
replaced by elements of humanity. The concepts of happiness
in marriage and marriage as part of normal human relations
started gathering momentum.
The view that Psychological factors can cause suffering
equal to or greater than that which results from physical
danger began influencing the concept of cruelty. Mental
cruelty came to be seen as an extended version of physical
cruelty.
Infinite kinds of conduct came under the scope of mental
cruelty and no one dared attempt to define it in a strait
jacketed manner. In the words of Lord Watson, 'Any definition
would be either so wide as to be nugatory, or too narrow to fit

122. Taylor v. Taylor 2 Lee (1755).

234

in the ever varying events of human life. Neither can we define

other terms applicable to human conduct, such as ‘honesty’,
for instance, or ‘good faith’ or ‘malice’ or ‘danger’ or
‘reasonable apprehension’. Such rudimentary terms elude a
prioric definition they can be illustrated but not defined.'
However, the relaxed concept of cruelty had certain
drawbacks as well. The bulk of marriage were and are being
dissolved by the ever growing Frankenstein termed ‘cruelty’. If
the conservative concept of cruelty dissolved just 10 percent of
the marriages in question, the modern concept dissolves more
than 60 percent. For example, a wife was granted divorce
because her husband, while sick, was indecent to her, choked
her, struck her once and called her a whore. 123 The divorce
was allowed on the grounds of the husband’s single act of
striking his wife in the face. 124
In Bhagat v. Bhagat, 125 the Supreme Court defined
mental cruelty as that conduct which inflicts upon the other
party such mental pain and suffering as would make it not
possible for that party to live with the other. In other words,
mental cruelty must be of such a nature that the parties
cannot reasonably be expected to live together.
The situation must be such that the wronged party
cannot reasonably be asked to put up with such conduct and
continue to live with the other party. It is not necessary to
prove that the mental cruelty is such as to cause injury to the
health of the petitioner. To judge mental cruelty, Court has to
go by 'intensity, gravity and stigmatic impact' of cruel

123. Gilbert v. Gilbert 137 NE.99 (cases and matri

124. Young v. Young 154 NE. 405(1926).
125. 1994 SC 710, Hema Reddy v. Rakesh Reddy, AIR 2002 AP 228.
 235

treatment, even if such cruel treatment is meted out once. 126

While arriving at such a conclusion regard must be had to the
social status, educational level 127 of the parties, the society
they move in, the possibility or otherwise of the parties never
living together in case they are already living apart and all
other relevant facts and circumstances which it is neither
possible nor desirable to set out exhaustively. What is cruelty
in one case may not amount to cruelty in another case. It is a
matter to be determined in each case having regard to the
facts and circumstances of that case. In the modern
matrimonial law, mental cruelty is a very important aspect of
legal cruelty.
In Praveen Mehta v. Inderjeet Mehta, 128 Court has defined
mental cruelty as a state of mind and feeling. The court
further said that mental cruelty is a matter of inference and
inference has to be drawn on facts and circumstances taken
cumulatively. N. Sreepadachanda v. Vasantha, 129 provides very
good illustration of mental cruelty. The Court found that the
wife quarrelled with, and hurled milest abuses at her husband
over most trivial matters, on account of which the husband
had to spend many sleepless nights and suffered great mental
agony. She not merely abused him at home, but she did so in
public and subjected him to great humiliation and shame
before the public. He became a laughing stock in the locality.
On one occasion, she caught hold of him by his collar in a bus
and abused him. On another occasion, she made him cook
food for her and when he served the food to her, in a rage she

126. Vijay Kumar Ramchandra Bhate v. Neela Bhate, AIR 2003 Sc 2462.
127. G.V.N. Kameswara Rao v. G. Jalili, 2002 Sc 576.
128. 2002 SC 2582.
129. 1970 Mys 232. See also Harbhajan v. Amarjeet, 1986 MP41;
Dr.Loeswari v. Dr. Srinivas Rao, 2000 Andhra Pradesh 431
236

threw the plates at him saying that what rubbish he had

cooked and wanted an apology from him. Once when he was
going to his office with his colleagues, she caught hold of him
by the neck and abused and insulted him. She used to say
that she wanted her husband to be killed in some accident so
that she could have his insurance money and provident fund.
All this obviously caused great agony and mental torture to
the husband.
Wilful, unjustifiable interference by one spouse in the
sphere of life of another is one species of cruelty in the same
manner as rough or domineering conduct or unnatural sexual
practices or disgusting accusations of unchastity or adultery
are studied unmindness or persistent nagging also amount to
cruelty. 130
Denial of medical treatment to the spouse, particularly
on the very first day of her arrival in the matrimonial home
and turning her out of the matrimonial home on the very first
day are obviously acts of cruelty. 131 Continuous ill treatment,
cessation of marital intercourse, studied neglect and
indifference, total lack of affection and regard on the part of a
spouse are also acts of cruelty. 132
In Naveen Kohli v. Neelu Kohli, 133 the apex court
reiterated the well-established view that to constitute cruelty,
the conduct complained of should ‘grave and weighty’ so as to
came to the conclusion that the petitioner spouse cannot be
reasonably expected to live with the other spouse.
The word 'cruelty' is to be used in relation to human
conduct or human behaviour. It is the conduct in relation to-

130. Siddagagiah v. Lakshmma,1968 Mys 115.

131. Balbir v. Dhirdas, 1979 Punjab & Haryana 162.
132. Parimi v. Parimi,1994 Andhra Pradesh 92.
133. 2006 AIR 1675, 2006 (4) SCC 558.
 237

or in respect of matrimonial duties and obligations. It is a

course of conduct of one which is adversely affecting the
other. The cruelty may be mental or physical, intentional or
unintentional. 134
Here is a classic example. Mrs Grimditch had sustained
severe injuries while riding in a car driven by her husband.
While she was in helpless state, immobilised in casts in
hospital, her husband discovered proof of her having
committed adultery. He charged her with adultery, and
threatened to divorce her and deprive her of the custody of the
children. His conduct, under the circumstances and
conditions, constituted cruelty. 135 Any unjustifiable course of
conduct practised over a long period by one spouse towards
the other, which utterly destroys the legitimate ends and
objects of matrimony, constitutes cruelty. 136
For instance, it may be galling, or in some way
humiliating, if a woman’s husband prefers the company of his
male friends, his club, newspapers, games, hobbies, or indeed,
his own society, to association with her. A husband may have
similar grievances against his wife. However, this may be
called the reasonable wear and tear of married life, and
deeming it mental cruelty would result in a heavy toll on the
institution of matrimony. 137
We must recognize that in India, even to this day, more
often than not, marriages are still arranged by parents. The
boy and girl have little or no opportunity to meet each other
before their marriage.

134. Shobha Rani v. Madhukar Reddi, AIR 1988 SC 121.

135. Grimditch v. Grimditch 225, P. 2d 48.
136. Brow v. Brow 232, P. 2d (27 A.CJS, Divorce, P.65).
137. Buchlar v. Buchlar (1947) 1 All DR 319.
238

'Marriage is a very close and intimate relationship

between a man and a woman, and when two persons almost
strangers to each other are suddenly thrown together into
such a relationship, it is inherent in the situation that they
must go through a period of adjustment which may be tough
or smooth, depending upon the parties concerned. What
happens during this period has, therefore, to be seen in this
context. To help preserve marriages, too much should not be
made of petty instances of things said or done, until the
parties have had time to know each other and settle down.
there can of course, be no hard and fast rule for this as each
case has to be considered in its own set of circumstances'. 138
All the incidents in a charge of cruelty must be taken
together to form a composite picture, and the result must be
judged in relation to all the surrounding circumstances. The
matter must be considered as a whole. Incidents of cruelty
cannot be treated in isolation, as the relationship of marriage
is not just the sum of a number of incidents. The entire
context, cause and effect must be looked at, bearing in mind
the characters and temperaments of the parties as well as the
whole history of the marriage. The quality of every piece of
conduct is affected by its context and by that which precedes
and follows it. 139
When the marriage is dead, emotionally and practically,
and there is no chance of its being retrieved, continuance of it
would itself be a cruelty. 140
Where the husband is in the habit of mercilessly beating
the wife for little or no reason, it is cruelty. 141

138. Neelam v. Vinod Kumar Middhi AIR 1986 Punjab & Haryana. 253.
139. Ram Raj Kaur v. Kuldeep singh, 1984 MLR 235.
140. Ramesh Chunder v. Savitri (1995) 2 SCC7; 1 (1995) DMC 231.
 239

To force a mother to leave a small child in the

matrimonial home and forcing her to get alone on some false
accusation of unchastity is the greatest act of cruelty. 142
In one case, the wife alleged that her husband was 'after
her day and night', at all times and all seasons, demanding
sexual intercourse, sometimes even as often as five times a
night. When refused, he still persisted in making revolting
demands. Such persistent demands, which are known to be
regarded as inordinate or revolting by the other spouse, show
a lack of consideration and this, coupled with other conduct,
constitutes cruelty. 143 In another case, the wife alleged that
her husband woke her up at unreasonable hours of the night,
'once a week or so', demanding physical relations. She used to
refuse, sulk, pont and become silent, sometimes for days. The
view taken was that the husband could not be held guilty of
cruelty or inhuman treatment. 144
In Nijhawan v. Nijhwan, 145 though the marriage was
consummated and there was a child also, the husband was
declared to be sexually weak and the wife was granted judicial
separation on the ground of cruelty.
In K. Bhavani v. K. Lakshmana Swamy, 146 a husband
underwent a sterilisation before marriage and concealed this
fact from his wife. Thus the wife was forced to be barren. This
was considered to be an act of ‘physical’, mental and legal
cruelty.

141. Rani Devi v. Hussan Lal AIR 1988 Punjab & Haryana 65.
142. Suresh Bala v. Rajbir Singh 1(1997) DMC 311.
143. HolBorn v. Holborn, (1947) 1 ALL ER 32.
144. Record v. Record 57 NW 2d 911.
145. AIR 1973 Delhi 200.
146. 1994 Cr L J 1827 (AP).
240

Husband’s brothers attempt to have sexual intercourse

with the wife is cruelty. 147
In another case the evidence established that the
husband was wanting his wife to have sex with his friends
brought by the husband to the matrimonial home and when
she refused, she was given beating. It was observed that to
prove beating it is not necessary to show injury on the basis of
medical evidence. The court granted divorce to the wife on the
ground of cruelty. 148 When one spouse holds out threat to
commit suicide, it constitutes cruelty. 149
Contracting Second marriage by the husband is itself an
act of mental torture to the wife, amounting to cruelty. 150
Imputation of unchastity in reply to wife’s application for
maintenance under Section 125, Criminal Procedure Code
1973, amounts to cruelty on which wife becomes entitled to
live separately and to maintenance under section 125,
Criminal Procedure Code, 1973. 151
The High Court of Delhi held that 152 the petitioner wife
alleged that the petitioners desire to have sex relation with
him used to be thwarted by the respondent and in spite of
best efforts and persuasion the marriage was not
consummated and she remained a virgin. The High Court
accepting the legal position that such non consummation of
marriage amounts to cruelty remanded the suit to trial court
to enable the wife to establish by medical evidence her

147. Amarjit Kaur v. Govind Singh (1986) 1 DMC 153 (Punj).

148. Chadrani v. Janardhan Gautam (1987) 1 DMC 33 (Punj).
149. Harbhajan Singh Monga v. Amarjeet Kaur AIR 1986 MP 41.
150. Dr. Suneer Sharma v. Dr. Madhurlata Sharma (1999) 2 DMC 745 (DB).
151. Shakuntala v. Rattanlal 1981 Cr. L J 1420 (HP).
152. Sudha v. Mahesh Chand Jhamb (1987) 1 DMC 73.
 241

virginity. Thus it is trite law that failure to effectuate sexual

inter course is cruelty. 153
In Pachipala Laxmaiah v. State of Andhra Pradesh, 154 a
wife poured Kerosene on herself and set herself on fire. In her
dying declaration she stated that the accused, who was her
husband, used to takr liquor after borrowing money from
villagers and beat her afterwards. The Andhra Pradesh High
Court concluded that the accused had not instigated the
decreased to commit suicide at the present occasion by doing
any act and thus he cannot be held guilty under section 306
of the Indian Penal Code, 1860. But his act in harassing the
decreased drinking continuously and beating her regularly
amounts to cruelty and so his conviction was altered from one
under Section 306 Indian Penal Code, 1860, to that under
Section 498-A, Indian Penal Code, 1860.
In State of Karnataka v. Moorthy, 155 the Karnataka High
Court ruled that act of a husband disregarding his duty to
provide wife and infant elementary means of sustenance and
deliberately and irresponsibly squandering his earnings on
gambling and other vices and starving wife and the child to
death amounts to cruelty under Section 498-A Indian Penal
Code, 1860, even though he was not proved guilty under
Section 306, Indian Penal Code, 1860, when bodies of wife
and child were recovered from a channel.
(a) What amount to cruelty :
Tolstoy 156 cites a few examples of cruelty as extracted
from English cases, e.g. husband deceiving his wife as to
antecedents, refusal to co-operate over family matters,

153. Shankar v. Madhabi AIR 1982 Cal 474.

154. 2001 Cr. L J 4063 (AP).
155. 2002 Cr. L J 1683 (Karnataka).
156. Tolstoy: Divorce, 68, Seventh Edition.
242

taciturnity, personal uncleanliness, nagging moods of

sulkiness during which the husband ignored his wife,
unreasonable demand of sick wife preventing the husband
from sleeping, killing the wife’s child, brutality to her child,
systematic neglect or insults, wilful neglect to maintain the
wife and children, in certain circumstances desertion, wife’s
obsession over cleaning the houses, drunkenness, sexual
malpractices on the other spouses, such as coitus interruptus
or grossly excessive or revolting sexual demands, or refusal to
have a child, false accusation of adultery, misconduct in
relation to third parties such as the husband’s indecent
assault on the child of the marriage or on his step-daughter,
or carnal knowledge of the wife’s infant sister or his
conviction for indecent exposure, the wife’s unnatural
practices with other women.
Detailing some instances of cruelty Rayden 157 states
'Financial Irresponsibility, drunkenness, gambling, bullying of
the petitioner or children of the family, threats, abuse,
nagging, quite apart from physical violence, may all constitute
behaviour in such a way that the petitioner cannot reasonably
be expected to live with the respondent'. A few examples of
cruelty as extracted from English cases cited in Rayden on
Divorce may be opposite.
These are –
(i). Wilful and reckless communication of venereal disease to
the other spouse;
(ii). Refusal of sexual intercourse, or the practice of coitus
interruptus or persistence in inordinate sexual demands
or malpractices, or insistence on use of contraceptives;

157. Rayden: Divorce, 261, Fifteenth Edition.

 243

(iii). Husband’s submitting himself to a sterilisation process

without good medical reason without wife’s consent if
wife’s health in the process is injured;
(iv). Sexual offences, and attempts to commit unnatural
offences, Philandering with other women;
(v). Refusal by wife to have sexual intercourse is more
serious than refusal by man- although it is not right to
draw a distinction between wife’s refusal and husband’s
refusal;
(vi). Threats, vulgar abuse, false accusation, insult to the
petitioner by respondent spouse;
(vii). Respondent’s drunkenness, gambling, drug-taking.
(b) What does not amount to cruelty :
Cruelty has to be distinguished from normal wear and
tear of marriage, 158 e.g. taking job elsewhere by wife per se is
not cruelty especially under the circumstances where the
husband was not taking care of her. 159 Similarly, refusal to
give up job is not cruelty. 160
Also quarrels between the spouses on trivial matters
dons not amount to cruelty. 161 Reluctance of working wife to
do household chores is not cruelty. 162 Pin-pricks alone without
more will not amount to cruelty. 163 The solitary incident of
seeing the wife on bi-cycle in the company of another man,
cannot amount to cruelty. 164

158. 2002 SC 591

159. Balkrishan v. Urmila,2001 Raj.404
160. Arunima Bhattacharjee v. Shyama Prasad Bhattacharjee, 2004 Cal
161.
161. Bajrang Gangadhar Revdekar v. Pooja, 2010 Bom 8.
162. Smriti Ananta v. Ramchhander,2009 cal 167 (DB).
163. Geeta Nainy v. B.B. Nainy (1985) 1DMC 275 (Del).
164. M.Lalitha alias M. Latha v. R. Subramaniam (2001) 1 DMC 507 (DB).
244

Mere incompatibility of temperament is not cruelty.165

Questioning husband as to his late coming, complaint to
police station which may embarrass a husband by itself is not
cruelty. 166 Living with a rape victim does not amount to
cruelty. 167 Mere domestic quarrels on account of the presence
of the mother-in-law in the family would not constitute mental
cruelty. 168 Mere misbehaviour with parents of husband and
other relatives does not amount to cruelty. 169 In P. v. P, 170 the
respondent wife was found in a hotel cabin with her blouse
and brassiere unhooked and co-respondent holding her
breasts. Bombay High Court held this incident did not upset
the petitioner-husband’s health to any extent and Bombay
High Court refused to translate this conduct on the part of the
respondent as cruelty to the petitioner.
9. Cruelty under Personal Laws :
(i) Cruelty under the Special Marriage Act, 1954 :
It is a ground for judicial separation and divorce under
the Special Marriage Act, 1954, which provides in Section
27(1) (d) that when the respondent has since the
solemnisation of the marriage treated the petitioner with
cruelty the petitioner may obtain divorce. Under Section 23,
the Special Marriage Act, 1954, too on the aforesaid ground
petitioner may sue for judicial separation under Section 10,
Hindu Marriage Act, 1955, respondent’s cruelty to the
petitioner was a ground for judicial separation provided such
cruelty amounted to legal cruelty, that is to say it caused
reasonable apprehension in the mind of the petitioner that it

165. Dwarakabai v. Nainan Mathews AIR 1953 Mad 792 (798).

166. Gorachand v. Dipali (1983) 2 DMC 7; (1983) a Cal L J 411.
167. Rajesh Kumar Singh v. Rekha Singh, 2005 All 16.
168. Yashoda bai v. Krishnamoorthy, 1992 Kant 368.
169. Renu v. Sanjai Singh, 2000 All 201.
170. AIR 1982 Bom 498; (1983) 1 DMC 141.
 245

would be harmful or injurious for the petitioner to live with

the other party. 171 But now such ingredients need not be
present either for judicial separation or for divorce. Treating
the petitioner-spouse with cruelty affords ground both for
judicial separation and divorce both under the Special
Marriage Act, 1954, and the Hindu Marriage Act, 1955. Such
elements need no longer be proved in pending suits for
judicial separation. 172 But a somewhat different view has been
expressed by the Calcutta High Court (Now Kolkata) in
Sulekha Bairagi v. Kamala Ranta Bairagi, 173 it has been held
there that even after the amendment effected by the Marriage
Laws (amendments) Act, 1976 for divorce on the ground of
cruelty, cruelty simpliciter would not do. The petitioner will
have to prove further that the cruelty is of such a character as
to cause a reasonable apprehension in the mind of the
petitioner that it will be harmful or injurious for him or her to
live with him. This observation, it is submitted, may appear to
be obiter because in Sulekha Bairagi’s case the petition was
for judicial separation and although the amended provisions
on the self same ground did entitle the petitioner to ask for
divorce the petition was not amended and on this ground the
Calcutta High Court refused the relief of Divorce to the
petitioner. The Karnataka High Court appears to have rightly
held that if a conduct does not amount to cruelty for the
purpose of divorce, it also can not operate as a ground for
judicial separation. 174

171. Kusumlaqta v. Kamta Prasad, AIR 1965 All 280; Tusar Kana v.
Bhawani Prasad, 73Cal WN 143; Saptami Sarkar v. Jagadish 73 cal
502.
172. Kamla devi v. Atmaram 1979 All WC 456; (1979) 5 All LR 376; AIR
1980 NOC 37(All).
173. AIR 1980 Cal 370; 84 Cal WN 716; (1980) 2 Cal L J 82.
174. Subhasini v. B.R.Umakanth (1985) 1 DMC 67 (82).
246

So far as cruelty is concerned in view of Section 13(1)(ia)

of the Hindu Marriage Act, 1955, as introduced in Uttar
Pradesh for divorce, cruelty had to be persistent and repeated
whereas for judicial separation, cruelty was not required to be
persistent or repeated. But the marriage Laws (amendment)
Act 1976 has wiped off the distinction retrospectively. 175 In a
case the petitioner for divorce was found himself guilty of
cruelty to the respondent wife and both the spouses took the
stand that they could not reunite. The Punjab High Court in
such an eventuality instead of passing a decree of divorce
passed under Section 13A, the Hindu Marriage Act, 1955, a
decree for judicial separation. 176
The court cannot consider the conduct of the wife before
marriage and the incident which occurred prior to the date of
marriage for determination of allegation of cruelty under
Section 13(1)(ia) of the Hindu Marriage Act. 177
(ii) Cruelty under the Hindu Marriage Act, 1955 :
Under the Hindu Marriage Act, 1955 as amended by the
Marriage Laws (Amendment) Act, 1976, cruelty is a ground for
divorce as well as for judicial separation. 178 Section 13(1) (ia)
states that a marriage may be dissolved on the ground that
the other party has ‘after the solemnisation of the marriage,
treated the petitioner with cruelty’. Prior to 1976, cruelty was
only a ground for judicial separation. 179 Another significant
change brought about by the 1976 amendment is that the

175. Supra note 172.

176. Angren Kaur v. Baldev Singh, AIR 1980 Punj 171.
177. Smt. Anita alias Sona Goswami v. Sourendra Kanta Goswami (2000) 2
DMC 126 (DB).
178. Section 13 and 10, of Hindu Marriage Act,1955. The State of Uttar
Pradesh had made cruelty (and desertion) as a ground for divorce way
back in 1962 vide Hindu Marriage (Uttar Pradesh sanshodhana)
Adhiniyam,1962.
179. Section 10 (b) of the Unamended Act, i.e., prior to 1976.
 247

concept of cruelty has been enlarged. Earlier, it was confined

to ‘such cruelty so as to cause reasonable apprehension in the
mind of the petitioner that it will be harmful or injurious for
the petitioner to live with the other party’. However, now the
petitioner has simply to establish that the respondent has
‘treated the petitioner with cruelty’. There are no conditions as
regards the nature or fear of injury or harm.
It may be pointed out here that the move towards
liberalisation of the divorce laws vide the amendments in 1976
had many dissents who apprehended that the institution
marriage would collapse. They urged caution and pointed out
that divorce is not by any means a panacea for women’s ills,
and that quick-divorce may be much less valuable than tardy
divorce. 180
'The absence of desertion and cruelty from the grounds
of divorce (prior to 1976) asserts Derrell at another place, 181
speaks volumes not for Parliament’s inhumanity, but rather
for its belief that the moral qualities of Hindu spouses will,
given a chance , reconcile them to the short comings of their
partners whom they have after all deserved through their
merits or demerits in previous births.'
(iii) Cruelty under Parsi Marriage and Divorce Act, 1936 :
Under the Parsi Marriage and Divorce Act, 1936, prior to
1988, cruelty was only a ground for judicial separation, and
cruelty was explained as such behaviour ‘as to render it in the
judgement of the court improper to compel him or her to live
with the respondent’. The Section 34 also explicitly included
cruelty to children as matrimonial cruelty for purpose of

180. J.Duncan M.Derrett: The Death of a Marriage Law : Epitaph for the
Rishis, 34, (1978).
181. J.Duncan M.Derrett: Critique of Modern Hindu Law, 351 (1970).
248

relief. 182 After the amendment of 1988, cruelty has been

incorporated as a ground for judicial separation 183 as well as
for divorce, 184 provided that in every suit for divorce on this
ground. It would be the court’s discretion whether to grant
divorce or judicial separation.
(iv) Cruelty under Muslim Law
Under the Islamic Law, a husband can divorce his wife
without assigning any reason or pleading any ground. So far
as the wife is concerned, apart from the right of Khoola or
mubrarat divorce, she has a statutory right under the
Dissolution of Muslim Marriage Act, 1939, to obtain a divorce
on certain grounds. Cruelty is mentioned as one of the
grounds. The concept of cruelty is defined in the Act as
follows 185 viz., that the husband :
(i). Habitually assaults her or makes her life
miserable by cruelty of conduct even if such
cruelty does not amount to physical ill
treatment; or
(ii). Associates with women of evil-repute or leads
an infamous life; or
(iii). Attempts to force her to lead an immoral life;
or
(iv). Disposes of her property or prevents her
exercising legal rights over it; or
(v). Obstructs her in the observance of her
religious profession or practice; or
(vi). If he has more wives than one and does not
treat her equitably in accordance with the
injunctions of the Quran.

(v) Cruelty under Indian Divorce Act, 1869

Under the Indian Divorce Act, 1869, prior to its
Amendment in 2001, a wife could seek divorce if the husband

182. Section 34, Parsi Marriage and Divorce Act, 1936, Prior to 1988.
183. Ibid.
184. Section 32(dd), Parsi Marriage and Divorce Act, 1936.
185. Section 2(ix) Dissolution of Muslim Marriage Act,1939.
 249

had been guilty of cruelty coupled with adultery. 186 The

husband could not take the plea of wife’s cruelty to obtain
dissolution. The only ground available to him was adultery.
Cruelty, however, was available as a ground for judicial
separation to both the husband and the wife. 187 The Indian
Divorce (amendment) Act, 2001 has completely transformed
the original Act and the grounds for matrimonial relief have
been brought almost at par with the Special Marriage Act,
1954 and the Hindu Marriage Act, 1955. The statutory
position now as regards cruelty is that a marriage may be
dissolved if the respondent ‘has treated the petitioner with
such cruelty as to cause a reasonable apprehension in the
mind of the petitioner that it would be harmful or injurious for
the petitioner to live with the respondent’. 188 Cruelty continues
to be a ground for judicial separation as well.
10. Distinction between Section 498A and Section 304B:
Section 304B and Section 498A cannot be held to be
mutually exclusive. These provisions deal with two distinct
offences. It is true that 'cruelty' is a common essential to
both the sections and that has to be proved. The Explanation
to Section 498A gives the meaning of 'cruelty'. In Section
304B, there is no such Explanation about the meaning of
'cruelty' but having regard to the common background to
these offences, the meaning of 'cruelty' or harassment' in
Section 304B will be the same as one finds in the
Explanation to Section 498A under which 'cruelty' by itself
amounts to an offence and is punishable under Section 304B,
it is the 'dowry death' that is punishable and such death

186. Section 10, Indian Divorce Act, 1869

187. Section 22, Indian Divorce Act, 1869
188. Section 10(x), Indian Divorce Act, 1869, after 2001 amendment.
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should have occurred within seven years of the marriage. No

such period is mentioned in Section 498A and the husband
or his relative would be liable for subjecting the woman to
'cruelty' any time after the marriage. 189 Section 498A to some
extent overlaps with Section 304B but it can't be said that
sufficient provision has already been incorporated in the
Penal Code in the shape of Section 498A so as to deprive the
law court from recording the conviction under Section 304B
read with Section 116, Indian Penal Code, 1860. 190 The
ingredients of Section 304B are totally different than that of
Section 498A. The scope of Section 498A is wider as
compared to Section 304B. 191
11. Distinction between Section 498A and 306 :
The basic difference that lies between the two sections
is that of intention. Under Section 498A, cruelty committed
by the husband or his relatives drag the woman to commit
suicide, whereas under Section 306, suicide is abetted and
intended. 192
12. Section 498A, Indian Penal Code, 1860, and Section
4 of The Dowry Prohibition Act, 1961
Section 4 of the Dowry Prohibition Act, 1961stipulates:
'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 may extend to two years and with fine which may
extend to ten thousand rupees: 193

189. Shanti (Smt.) v. State of Haryana, AIR 1991 SC 1226.

190. Satvir Singh v. State of Punjab (1999) 1 RCR (Cri) 27 (P&H).
191. State of Haryana v. Sunil Kumar, (1999) 2 RCR (Cri) 749 (P&H).
192. Girijashanker & Others v. State of Madhya Pradesh, 1989 CriLJ 242
(Madhya Pradesh).
193. Section 4, Dowry Prohibition Act, 1961.
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Provided that the court may, for adequate and special

reasons to be mentioned in the judgement, impose a sentence
of imprisonment for a term of less than six months'.
Section 498A, Indian Penal Code, 1860, says:- 'whoever
being the husband or the relatives 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.
Under Section 4 of the Dowry Prohibition Act, 1961 what
is made punishable is the demand 194 itself, whether direct or
indirect, from the parents or other relatives or guardian of a
bride or bridegroom. Whereas Section 498A deals with the
aggravated from of the offence. It inter alia punishes such
demands of property or valuable security from the wife or her
relative, as are coupled with cruelty to her. So in Section 4 of
the Dowry Prohibition Act, 1961, it is the demand of dowry
simpliciter which is punishable whereas under Section 498A
demand of dowry coupled with cruelty is punishable and as
such these two offences are distinct and stand on two different
footings.
13. Abuse of Section 498A, Indian Penal Code, 1860 :
Section 498A has been misused in many instances
admits of no doubt. This has been taken judicial notice of in
several cases. The Parliamentary Committee has also adverted
to this aspect. The inputs received by the Law Commission
and the representations made to the Home Ministry, also
confirm this fact. However, there is no reliable data to reveal
the extent of abuse or misuse. The data/information reveals
that urban and educated women are mostly forward to file the

194. Daulat Man Singh Aher v. C.R.Bansi, 1980 Cr. L J (Bom) 1171.
252

complaints under this section. The data also reveals that in

most of the cases, apart from the husband, to of his relations
(especially in-laws) are being prosecuted. 195 Misuse arising
from exaggerated versions and over implication should not by
itself be a ground to dilute the provisions by making it
bailable. Depriving the police of the power to arrest without
warrant in order to have proper investigation would defeat the
objective of the provision and may be counter-productive. The
element of deterrence will be irretrievably lost, once it is made
bailable. It is to be noted that the misuse did not flow from the
section itself but the roots of misuse were grounded on the
insensitive police responses and irresponsible legal advice.
The victim complainant deprived of her cool and objective
thinking, quite, often, unwittingly signs a complaint
containing such exaggerated or partially false allegations. By
the time she realizes the implications, it would be too late. 196
(i) Judicial Approach :
The Supreme Court in the case of Preeti Gupta v. State of
Jharkhan, 197 observed that a serious look of the provision is
warranted by the legislature. The court said : 'It is a matter of
common knowledge that exaggerated versions of the incidents
are reflected in a large number of complains'. The Court took
note of the common tendency to implicate husband and all his
immediate relations. The Supreme Court directed the Registry
to send a copy of judgment to the Law Commission and Union
Law Secretary so that appropriate steps may be taken in the
large interest of society.

195. Law Commission of India, 23, 24, Report No. 243, 29 August 2012.
196. Ibid.
197. AIR 2010 SC 3363.
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In case of Sushil Kumar v. Union of India, 198 the Supreme

Court lamented that in many instances, complaints under
Section 498A were being filed with an oblique motive to wreck
person vendetta and observed, 'it may, therefore, become
necessary for the Legislature to find out ways how the makes
of frivolous complaints or allegations can be appropriately
dealt with'. It was also observed that 'by misuse of the
provision, a new legal terrorism can be unleashed.
Various High Courts in the country have also noted that
in several instances, omnibus allegations are made against the
husband and his relatives and the complaints are filed
without proper jurisdiction. The need to exercise caution in
the case of arrest of the husband and his relatives has been
stressed while observing that by such a step, the possibility of
reconciliation becomes remote and problematic. In some of the
cases, directions were given by the High Courts for regulating
the power of arrest and for taking necessary steps to initiate
conciliatory effort at the earliest point of time.
(ii) Report According to Law Commission :
The complaint of over-implication noticed by the Courts
is borne out by the statistical data of the cases under Section
498A. According to informations received from the Hon’ble
High Courts (during the year 2011), 3,40,555 cases under
Section 498A Indian Penal Code, 1860, were pending trial in
various courts towards the end of 2010. There were as many
as 9,38,809 accused implicated in these cases. This does not
include cases pertaining to Punjab and Haryana (statistics not
available). The implication of the relatives of husband was
found to be unjustified in a large number of decided cases.

198. 2005 6 SCC 281.

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While so, it appears that the women especially from the poor
strata of the society living in rural areas rarely take resort to
the provision, though they are the worst sufferers. However,
according to Delhi Police officials, with whom the Commission
had interacted, women from poor background living in slums
are also coming forward to file complaints. 199
According to the statistics published by National Crime
Records Bureau for the year 2011, 3,39,902 cases under
Section 498A were pending trial in various courts at the end of
the year and 29,669 cases under Section 304-B of Indian
Penal Code, 1860. The conviction rate in Section 498A cases is
21.2% and in Section 304-B cases, it is 35.8%. Number of
cases reported under Section 498A in the year 2011 are
99,135 and during the two previous years, they were 94,041
and 89,546. Thus, there is slight increase (about 5%) in the
reported cases every year. As stated earlier, many cases go
unreported. The statistics relating to reported incidents may
not therefore furnish a reliable comparative indicator of the
actual incidence of crimes in the States. For instance, when
compared to other cities, the percentage share of incidents
reported under Section 498-A is the 2nd highest in Delhi. It
may be because that the percentage of reporting is apparently
high. The dowry-death cases (Section 304-B) reported during
the years 2009-11 are: 8,383, 8,391 and 8,618. There is a
view-point that if the offence under Section 498A is made
bailable or non-cognizable, it will cease to be a deterrent
against cruelty inflicted on married women and the dowry-
deaths may increase.

199. Lowcommissionofindia.nic./in/reports/report, 243.pdf

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As noticed earlier, the conviction rate in respect of the

cases under Section 498A is quite low – it is about 20%. It is
learnt that on account of subsequent events such as out-of-
court settlement, the complainant women do not evince
interest in taking the prosecution to its logical conclusion.
Further, ineffective investigation is also known to be one of
the reasons for low conviction rate. 200
Conclusion :
Despite constitutional guarantees of justice, social
economic and political and assurances of a life of freedom,
equality and dignity, sexual abuse and other heinous crimes
are ravaging the lives of millions of women, who remain a prey
to predator in the form of husbands, relatives or friends. The
horrendous nature of domestic violence has been visited and
documented across the nations and cultures throughout the
globe. Although it is off late, but a beginning has been made
in defining a change through the new legislation; Protection of
Women From Domestic Violence Act, 2005 in which it can
reduce insecurity and miserable plight of the Indian women.
The law itself is not the only instrument in the justice delivery
system, what is needed are coordinated actions among the
various service provides for women in need of help. These are
the health sectors, the police, social workers (Shelter homes),
NGOs community centres, prosecutors, and the judiciary.
There is an urgent need to provide training to members of
these services as well as ensure that women have access
through greater availability of these support systems.
In India, there is always a huge gap between paper laws
and solid enforcement and justice is still a nebulous idea

200. Ibid.
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rather than a fact. No amount of legal safeguards will be

sufficient unless we go to the root of the problem. The problem
will arise when the right of residence of a legally married wife
clashes with the right of a so-called 'immoral and
promiscuous' one. Therefore there has to be a change in the
societal attitude towards women.
In the context of new feminine awakening it may be
injust, statistically incorrect and awakeward to blame women
alone for all the misuse of Section 498A. The reasons for
misuse are manifold. It has also shown therein that other
factors than women are responsible for the sporadic misuse.
Now let me look at solutions for the malady of misuse. The
reasons themselves have inherently forwarded the answers to
the problem. The solution is said to be part of the problem.
No one thinks that there is no problem in implementing
the law on cruelty (Section 498A, Indian Penal Code, 1860),
though it is not all about women's misuse.

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