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REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPEALLATE JURISDICTION

CRIMINAL APPEAL NO.811 OF 2004

Pinakin Mahipatray Rawal Appellant

Versus

State of Gujarat Respondent

J U D G M E N T

K.S. RADHAKRISHNAN, J.

1.We are in this case concerned with the question as to

whether the relationship between A-1 and A-2 was extra-

marital leading to cruelty within the meaning of Section

498A IPC and also amounted to abetment leading to the act

of suicide within the meaning of Section 306 IPC.

2.A-1, the first accused, along with A-2 and A-3, were

charge-sheeted for the offences punishable under Sections

498A, 304-B and 306 IPC. The Sessions Court convicted A-1

Page 2 for the offence punishable under Section 498A IPC and

sentenced him to suffer RI for three years and to pay a fine

of Rs.5,000/- and in default to undergo further RI for six

months. A-1 was also convicted for offence punishable under

Section 306 IPC and sentenced to suffer RI for 10 years and

to pay a fine of Rs.5,000/- and in default to undergo further

RI for six months. A-2 and A-3, the mother of A-1 were,

however, acquitted of the various offences alleged against

them. The trial Court also acquitted A-1 of the offence

charged against him under Section 304-B IPC. On appeal by

A-1, the High Court though confirmed the conviction,

modified the sentence under Section 498A IPC to two years’

RI and a fine of Rs.2,500/- and in default to undergo further

RI for six months, and for the offence under Section 306 IPC,

the sentence was reduced to RI for five years and to pay a

fine of Rs.5,000/- and in default to undergo RI for one year.

It was ordered that the sentences would run concurrently.

Aggrieved by the judgment of the High Court, this appeal

has been preferred by A-1.

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3.Shri Sanjay Visen, learned counsel appearing for the

Appellant, submitted that the allegations raised against the

accused in respect of the alleged extra-marital relationship

with second accused would not constitute an offence under

Section 498A IPC. Learned counsel also submitted that the

suicidal death of the deceased was not a direct result of the

alleged extra-marital relationship and would not constitute

an offence punishable under Section 306 IPC. Learned

counsel also submitted that even assuming that the

Appellant was maintaining extra-marital relationship with the

second accused, there is no mens rea proved to show that

such relationship was maintained by the accused with an

intention to drive the deceased to commit suicide. Placing

reliance upon the suicide note Ex.44, learned counsel

submitted that the deceased did not allege any cruelty or

harassment on the part of the accused which led the

deceased to commit suicide. Learned counsel submitted

that in any view, the conduct of the accused or the alleged

relationship he had with A-2 was not of such a degree that

Page 4 would incite/provoke or push the deceased to a depressed

situation to end her life.

4.Mrs. Sumita Hazarika, learned counsel appearing for the

State, on the other hand submitted that extra-marital

relationship between the first and second accused was of

such a degree to disturb the mental balance of the

deceased, which amounted to cruelty within the explanation

to Section 498A IPC. Referring to various letters written by

the deceased to her father, learned counsel pointed out that

those letters would clearly depict the trauma undergone by

her, which ultimately drove her to commit suicide. Learned

counsel also referred to the latter part of the suicide note

and submitted that the same would indicate that A-1 and A-2

were in love and that A-1 wanted to marry A-2 and it was for

their happiness that the deceased committed suicide.

Learned counsel submitted that the Courts below have

correctly appreciated the documentary as well as oral

evidence of this case, which calls for no interference by this

Court.

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5.We may before examining the various legal issues refer

to some relevant facts. A-1 married the deceased in the

year -1989 and was leading a happy married life. A-1 while

working as a Field Officer in the Life Insurance Corporation of

India came into contact with A-2, who was then unmarried

and a colleague, working with him in the Corporation. Official

relationship and contacts developed into an intimacy, which

according to the prosecution, was “extra marital”. Due to

this extra marital relationship, the deceased, the wife of A-1,

developed a feeling of alienation, loss of companionship,

etc., which ultimately drove her to commit suicide on

18.3.1996 by leaping out of the terrace of a flat leaving a

suicide note Ex.44.

6.Prosecution in order to establish its case examined

altogether eleven witnesses and produced twenty two

documents. Prosecution, however, was not successful in

proving that A-1 or A-3 had caused any physical or mental

harassment to the deceased demanding dowry. A-3, the

mother of A-1, was acquitted of the charge and no evidence

Page 6 whatsoever was adduced to show that A-1 had also caused

any harassment physically or mentally demanding dowry.

Prosecution story entirely rests on the nature of relationship

A-1 had with A-2.

7.The prosecution in order to prove the relationship as

“extra marital”, made reference to few letters exchanged

between the deceased and her father. Ex.27 is letter of the

deceased written on 2.7.1993 to her father informing him

about the relationship A-1 had with A-2, which also disclosed

that the father of A-1 had gone to the house of A-2 twice to

persuade A-2 to withdraw from that relationship and advised

early marriage for A-2. Ex.28 is another letter dated

5.7.1993, addressed by the deceased to her father, wherein

she had stated that she had also gone to the house of A-2

and told her that she was prepared to part with her husband

A-1 and that A-2 had told her that deceased had blindly

placed faith on her husband. Prosecution also made

reference to Ex.29, letter dated 26.7.1993, wherein the

deceased had again made a complaint to her father of the

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continued relationship of A-1 and A-2. Ex.30 is yet another

letter dated 6.8.1993 written by the deceased again to her

parents, wherein she had indicated that even her father-in-

law was fed up with the attitude of A-1 and that often he

used to come to the house late in the night. Reference was

made to another letter Ex.31 dated 17.8.1993 written by the

deceased to her parents wherein also she had made

grievance against the behavior of A-1 and the steps taken by

the father-in-law to mend the ways of A-1. Letter also

indicated that A-1 had made a suggestion to include A-2 also

in their life, which she opposed.

8.Prosecution stand is that the above mentioned letters

would disclose the feelings and sufferings of an unfortunate

wife having come to know of the love affair between her

husband A-1 and his colleague A-2, which ultimately led her

to commit the act of suicide. Further, it is also the stand of

the prosecution that the deceased died within seven years of

marriage and hence under Section 113A of the Evidence Act,

the Court can presume, having regard to all other

Page 8 circumstances of the case, that such suicide had been

abetted by the husband.

9.We have to examine the question as to whether A-1 is

guilty or not under Section 498A and Section 306 IPC, in the

light of the fact that A-2 was already found not guilty of the

charges levelled against her under Sections 498A, 306 and

304-B read with Section 114 IPC. Further, the Court has

recorded a clear finding that the prosecution could not prove

any immoral or illegal relationship between A-1 and A-2 or

that A-1 had tortured mentally or physically his wife

demanding dowry. Further, there is also a clear finding of

the trial Court that A-2 had not contributed or caused any

mental harassment to the deceased so as to drive her to

commit the act of suicide. Further, the facts would disclose

that during the period of alleged intimacy between A-1 and

A-2, A-2 got married in November, 1993. Prosecution story is

that the intimacy between A-1 and A-2 developed years prior

to that and, of course, if the intimacy or relationship between

A-1 and A-2 was so strong, then A-2 would not have got

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married in November, 1993. During the period of alleged

relationship between A-1 and A-2, it is pertinent to note that

the deceased got pregnant twice, once in the year 1992,

which was aborted, and the year following when the wife

delivered a baby girl, which unfortunately died two days

after her birth. Prosecution has not alleged any hand or

involvement on the part of A-1 on such abortion. Facts

indicate that both A-1 and the deceased were staying under

the same roof and that A-1 was discharging his marital

obligations and was leading a normal married life.

10.A-1 had not caused any physical or mental torture on

the deceased, but for the alleged relationship between A-1

and A-2. Parents of the deceased also did not make any

allegation against A-1 of ill-treatment of wife or of dowry

demand. Possibly, he might have caught up in a one-sided

love affair with some liking towards A-2. Can it be branded

as an “extra-marital affair” of that degree to fall within the

expression “cruelty”? Extra-marital affair is a term which

has not been defined in the Indian Penal Code and rightly not

Page 10 ventured since to give a clear definition of the term is

difficult, as the situation may change from case to case.

ALIENATION OF AFFECTION

11.We are not prepared to say that there was any willful or

malicious interference by A-2 in the marital relationship

between A-1 and the deceased. A-2, it has not been proved,

had in any way caused any kind of mental harassment by

maintaining any relationship with A-1 so as to cause any

emotional distress on the deceased. No evidence had been

adduced or proved to show that A-2 had alienated A-1, the

husband from the deceased. Further, no evidence had been

adduced to show that due to the wrongful conduct of A-2,

the deceased had lost companionship, affection, love, sexual

relationship. No evidence has been adduced to show that

there has been any attempt on the part of A-2 to disrupt the

marital relationship between A-1 and the deceased.

12.Alienation of affection by a stranger, if proved, is an

intentional tort i.e. interference in the marital relationship

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with intent to alienate one spouse from the other. Alienation

of affection is known as “Heart Balm” action. Anglo-Saxon

common law on alienation of affection has not much roots in

this country, the law is still in its nascent stage. Anglo-

Saxon based action against third parties involving tortuous

interference with the marital relationship was mainly

compensatory in nature which was earlier available to the

husband, but, of late, a wife could also lay such a claim

complaining of alienation of affection. The object is to

preserve marital harmony by deterring wrongful

interference, thereby to save the institution of marriage.

Both the spouses have a valuable interest in the married

relationship, including its intimacy, companionship, support,

duties, affection, welfare of children etc.

13.We notice, in this country, if the marital relationship is

strained and if the wife lives separately due to valid reasons,

the wife can lay a claim only for maintenance against the

husband and if a third party is instrumental for disrupting her

marriage, by alienating her spouse’s affection,

Page 12 companionship, including marital obligations, seldom, we

find the disgusted spouse proceeds against the intruder into

her matrimonial home. Possibly, in a given case, she could

question the extent, that such injuries can be adequately

compensated, by a monetary award. Such an action, of

course, may not protect a marriage, but it compensates

those who have been harmed.

14.We are, however, of the view that for a successful

prosecution of such an action for alienation of affection, the

loss of marital relationship, companionship, assistance, loss

of consortium, etc. as such may not be sufficient, but there

must be clear evidence to show active participation,

initiation or encouragement on the part of a third party that

he/she must have played a substantial part in inducing or

causing one spouse’s loss of other spouse’s affection. Mere

acts, association, liking as such do not become tortuous.

Few countries and several States in the United States of

America have passed legislation against bringing in an

action for alienation of affection, due to various reasons,

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including the difficulties experienced in assessing the

monetary damages and few States have also abolished

“criminal conversation” action as well.

15.We may, however, indicate that few States and

countries strongly support such an action, with the object of

maintaining and preserving the marriage as a sacred

institution. Strong support comes from the State of

Mississippi in the United States. In Knight Vs. Woodfield

50 So. 3d 995 (Miss. 2011) , the husband filed a suit for

alienation against his wife. The wife alleged paramour after

gaining access to a phone call. Facts disclosed they had

exchanged 930 text messages and talked more than 16

hours in two months. In that case jurisdictional issues were

raised, but Court reaffirmed that law of alienation of

affection is firmly established in State of Mississippi. Another

case of some importance is Dare Vs. Stokes, 62 So, 3d

858 (Miss. 2011), where in a property settlement

agreement of divorced couple, a provision was made that

the husband would not bring suit against any other person

Page 14 for alienation of affection. Agreement was reduced to a final

order by the trial Court. Later husband came to know that

his wife had a love affair with one Dare and hence sought for

a modification of the agreement. He also sent a notice to

Dare as well of his intention to file a suit for alienation of

affection. Dare’s attempt to intervene and oppose the

application for modification of the agreement was not

favourably considered by the Court on the ground that he

cannot middle with the marital relationship.

16.Action for alienation of affection lies for all improper

intrusions or assaults on the marriage relationship by

another, whether or not associated with “extramarital sex”,

his or her continued overtures or sexual liaisons can be

construed as something akin to an assumption of risk that

his/her conduct will injure the marriage and give rise to an

action. But all the same, a person is not liable for alienation

of affection for merely becoming a passive object of

affection. The liability arises only if there is any active

participation, initiation or encouragement on the part of the

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defendant. Acts which lead to the loss of affection must be

wrongful, intentional, calculated to entice the affection of

one spouse away from the other, in order to support a

cause of action for alienation of affection. For proving a

claim for alienation of affection it is not necessary for a

party to prove an adulterous relationship.

17.We have on facts found that A-2 has not intruded into

the family life of A-1 and his deceased wife, and the Court on

evidence acquitted A-2 of all the charges levelled against

her. Consequently, it cannot be said that A-2 had in any way

contributed or abetted the deceased in committing the act of

suicide, or had attempted to alienate the affection of A-1

towards his deceased wife. If that be so, we have to

examine what type of relationship A-1 had with A-2. Can it

be said as an “extra-marital relationship” of such a degree

which amounted to “cruelty” falling within the explanation to

Section 498A and also leading to an offence under Section

306 IPC.

EXTRA-MARITAL RELATIONSHIP

Page 16 18.Marital relationship means the legally protected marital

interest of one spouse to another which include marital

obligation to another like companionship, living under the

same roof, sexual relation and the exclusive enjoyment of

them, to have children, their up-bringing, services in the

home, support, affection, love, liking and so on. Extra-

marital relationship as such is not defined in the IPC.

Though, according to the prosecution in this case, it was that

relationship which ultimately led to mental harassment and

cruelty within the explanation to Section 498-

A and that A-1 had abetted the wife to commit suicide. We

have to examine whether the relationship between A-1 and

A-2 amounted to mental harassment and cruelty.

19.We have to examine the correctness or otherwise of the

findings recorded by the trial Court, affirmed by the High

Court, as to whether the alleged relationship between A-1

and A-2 has in any way constituted cruelty within the

meaning of explanation to Section 498A IPC. The facts in this

case have clearly proved that the A-1 has not ill-treated the

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deceased, either physically or mentally demanding dowry

and was living with A-1, in the matrimonial home till the

date, she committed suicide. Cruelty includes both physical

and mental cruelty for the purpose of Section 498A. Section

498A IPC reads as under :-

“498A. Husband or relative of husband of a woman

subjecting her to cruelty.-- Whoever, being the husband

or the relative of the husband of a woman, subjects

such woman to cruelty shall be punished with

imprisonment for a term which may extend to three

years and shall also be liable to fine.

Explanation.- For the purposes of this section," cruelty"

means-

(a) any wilful conduct which is of such a nature as is

likely to drive the woman to commit suicide or to cause

grave injury or danger to life, limb or health (whether

mental or physical) of the woman; or

(b) harassment of the woman where such harassment

is with a view to coercing her or any person related to

her to meet any unlawful demand for any property or

valuable security or is on account of failure by her or

any person related to her to meet such demand.

20.This Court in Girdhar Shankar Tawade Vs. State of

Maharashtra, (2002) 5 SCC 177, examined the scope of

the explanation and held as follows :-

Page 18 “3. The basic purport of the statutory provision is

to avoid “cruelty” which stands defined by

attributing a specific statutory meaning attached

thereto as noticed hereinbefore. Two specific

instances have been taken note of in order to

ascribe a meaning to the word “cruelty” as is

expressed by the legislatures: whereas

Explanation (a) involves three specific situations

viz. (i) to drive the woman to commit suicide or (ii)

to cause grave injury or (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 other one is latent but equally

serious in terms of the provisions of the statute

since the same would also embrace the attributes

of “cruelty” in terms of Section 498A.”

21.In Gananath Pattnaik Vs. State of Orissa, (2002) 2

SCC 619, this Court held that the concept of cruelty under

Section 498A IPC and its effect under Section 306 IPC varies

from individual to individual also depending upon the social

and economic status to which such person belongs. This

Court held that cruelty for the purpose of offence and the

said Section need not be physical. Even mental torture or

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abnormal behavior may amount to cruelty or harassment in

a given case.

22.We are of the view that the mere fact that the husband

has developed some intimacy with another, during the

subsistence of marriage and failed to discharge his marital

obligations, as such would not amount to “cruelty”, but it

must be of such a nature as is likely to drive the spouse to

commit suicide to fall within the explanation to Section 498A

IPC. Harassment, of course, need not be in the form of

physical assault and even mental harassment also would

come within the purview of Section 498A IPC. Mental

cruelty, of course, varies from person to person, depending

upon the intensity and the degree of endurance, some may

meet with courage and some others suffer in silence, to

some it may be unbearable and a weak person may think of

ending one’s life. We, on facts, found that the alleged extra

marital relationship was not of such a nature as to drive the

wife to commit suicide or that A-1 had ever intended or

Page 20 acted in such a manner which under normal circumstances,

would drive the wife to commit suicide.

23. We also notice in this case that the wife committed

suicide within seven years of the date of the marriage.

Hence, a presumption under Section 113A of the Evidence

Act could be drawn.

24. Section 113A which was inserted by the Criminal Law

(Second Amendment) Act, 1983, w.e.f. 26.12.1983, is given

below for easy reference :-

“113A. Presumption as to abetment of suicide

by a married woman. - 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.

Explanation.-- For the purposes of this section,

"cruelty" shall have the same meaning as in section

498A of the Indian Penal Code (45 of 1860 ).

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25.Section 113A only deals with a presumption which the

Court may draw in a particular fact situation which may arise

when necessary ingredients in order to attract that provision

are established. Criminal law amendment and the rule of

procedure was necessitated so as to meet the social

challenge of saving the married woman from being ill-treated

or forcing to commit suicide by the husband or his relatives,

demanding dowry. Legislative mandate of the Section is

that when a woman commits suicide within seven years of

her marriage and it is shown that her husband or any relative

of her husband had subjected her to cruelty as per the terms

defined in Section 498A IPC, the Court may presume having

regard to all other circumstances of the case that such

suicide has been abetted by the husband or such person.

Though a presumption could be drawn, the burden of proof of

showing that such an offence has been committed by the

accused under Section 498A IPC is on the prosecution. On

facts, we have already found that the prosecution has not

discharged the burden that A-1 had instigated, conspired or

intentionally aided so as to drive the wife to commit suicide

Page 22 or that the alleged extra marital affair was of such a degree

which was likely to drive the wife to commit suicide.

26.Section 306 refers to abetment of suicide. It says that if

any person commits suicide, whoever abets the commission

of such suicide, shall be punished with imprisonment for a

term which may extend to 10 years and shall also be liable

to fine. The action for committing suicide is also on account

of mental disturbance caused by mental and physical

cruelty. To constitute an offence under Section 306, the

prosecution has to establish that a person has committed

suicide and the suicide was abetted by the accused.

Prosecution has to establish beyond reasonable doubt that

the deceased committed suicide and the accused abetted

the commission of suicide. But for the alleged extra marital

relationship, which if proved, could be illegal and immoral,

nothing has been brought out by the prosecution to show

that the accused had provoked, incited or induced the wife

to commit suicide.

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27.We have on facts found that at best the relationship of

A-1 and A-2 was a one-sided love affair, the accused might

have developed some likings towards A-2, his colleague, all

the same, the facts disclose that A-1 had discharged his

marital obligations towards the deceased. There is no

evidence of physical or mental torture demanding dowry.

Deceased might have been under serious “emotional stress”

in the sense that she had undergone an abortion in the year

1992, and the year following that, though a daughter was

born to her, the daughter also died few days of its birth. After

one or two years, she committed suicide. Evidence, in any

way, is lacking in this case to hold, that due to the alleged

relationship between A-1 and A-2, A-1 had intended or

intentionally inflicted any emotional stress on the deceased

wife, so as to drive her to the extreme step of ending her life.

In the suicide note she had not made any accusations as

such against A-1 or A-2, on the other hand she stated that it

was she who was selfish and egoist. Suicide note (Ex.44),

which was translated by the High Court, reads as under :-

Page 24 “My husband Pinakin is a very good man and he is

not responsible. I also love him. However, I am

extremely bad, selfish and egoist and, therefore,

not a match to him.

He is in love with Priti Bhakt, serving in LIC and

wants to marry her and, therefore, for their

happiness, I am taking this step.

No one of my house is responsible. Therefore, they

may not be harassed. Kindly arrange their

marriage with all pomp and gaiety. I gift my dead

body to the medical students and I donate my

eyes to the blinds.

Yours

Jagruti

This is my last wish which be fulfilled for the peace

of my soul.”

28.Suicide note completely exonerates A-1, which states

that he was not responsible for death of the deceased. On

the other hand, the deceased described herself as extremely

selfish, egoist and, therefore, not a match for A-1. She

entertained the belief that her husband A-1 was in love with

A-2 and wanted to marry A-2. Note states it was for their

happiness she had decided to end her life. She also wanted

to have the marriage of A-1 and A-2 solemnized with pomp

and gaiety. On reading the suicide note, one can infer that

the deceased was so possessive of her husband, and was

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always under an emotional stress that she might lose her

husband. Too much of possessiveness could also lead to

serious emotional stress, over and above the fact that she

had one abortion and her daughter died after few days of

birth. No evidence is forthcoming in this case to show that

A-2 ever evinced any interest to marry A-1. On the other

hand, during the subsistence of the alleged relationship, A-2

herself got married.

29.We are, therefore, of the considered view that the

relationship A-1 had with A-2 was not of such a nature which

under normal circumstances would drive one to commit

suicide or that A-1 by his conduct or otherwise ever abetted

or intended to abet the wife to commit suicide. Courts

below, in our view, have committed serious error in holding

that it was due to the extra marital relationship A-1 had with

A-2 that led the deceased to take the extreme step to

commit suicide, and A-1 was instrumental for the said act.

In the circumstances, we are inclined to allow this appeal

and set aside the order of conviction and sentence imposed

on the appellant, and he is set at liberty. Ordered as above.

Page 26 ………..………………….J.

(K.S. Radhakrishnan)

…………………………… J.

(Pinaki Chandra

Ghose)

New Delhi,

September 09, 2013.