"Extra-Marital Relationship" may not amount to "Cruelty" under Section 498A, Indian Penal Code, 1860

In an important case (Pinakin Mahipatray Rawal v. State of Gujarat) where the question whether ‘extra-marital relationship’ could be considered as ‘cruelty’ under Section 498A of the Indian Penal Code, 1860 (“Penal Code”) had arisen, the Supreme Court of India (“Supreme Court”) has answered the question in negative. The case involved a situation where the deceased, wife of Accused-1 (“A-1”), had committed suicide following an alleged extra-marital relationship between A-1 and his colleague, Accused 2 (“A-2”). On being tired by the lower court, A-1 was convicted under Section 498A and 306 of the Penal Code. While A-2 and A-3 (‘Mother of A-1”) were acquitted of various alleged offences, A-1 was also acquitted of offence under Section 304B.

(Image Source: Storyline Blog)

Section 498A provides for the offence of cruelty by the husband or his relatives and Section 306 of the Penal Code provides for the offence of ‘Abetment of Suicide’. It was the case of the prosecution that the deceased had taken the step of committing suicide because of the alleged extra-marital relationship between A-1 and A-2. This relationship, according to the prosecution, had amounted to cruelty under Section 498A of the Penal Code. Though there was no evidence of any physical harm to the deceased, the prosecution rested its case on the basis of mental cruelty, as can be derived from explanation to Section 498A. With respect to the abetment of suicide, prosecution had relied on Section 113A of the Indian Evidence Act, 1872 (“Evidence Act”) where a presumption can be made that the husband or his relatives has abetted the suicide if the same takes place within 7 years of marriage.

Intentional Tort of ‘Alienation of Affection’

While deciding the case, Supreme Court stated that the present can be a case where A-1 might have been caught up in one-sided affair. Court then discussed the doctrine of ‘alienation of affect’, which is considered to be an intentional tort and is also known as ‘Heart Balm’ Action. In this form of tort, the marital relation is sought to be protected from the intrusion of a third party. For an action to succeed under this tort, it should be shown that a third party has actively participated in inducing or causing one spouse’s loss of other spouse’s affection. Such acts on the part of third party should be wrongful and intentional. Having analysed this position of law, the Supreme Court came to the conclusion that there was no active participation on the part of A-2 to intrude into the marital life of deceased and A-1. Hence, it could not be said that A-2 had alienated the affection of A-1 towards his deceased wife or has abetted the commitment of suicide.

Extra-Marital Relationship and Cruelty

Having considered the involvement of A-2 in abetting the suicide, the Supreme Court then considered the issue whether the ‘extra-marital relationship’ was of such a degree that it can amount to cruelty under Section 498A and for the purpose of Section 306. After taking account the facts that A-1 had not ill-treated the deceased, either physically or mentally and has been living in the marital home, the Court held 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.”

Though, under Section 498A of the Penal Code, cruelty can be both physical and latent (Girdhar Shankar Tawade Vs.  State of Maharashtra, (2002) 5 SCC 177, Gananath Pattnaik Vs. State of Orissa, (2002) 2 SCC 619), no such act has been committed by A-1 against the deceased. On the given factual situation, it was found by the Court that extra-marital relationship was not of such a nature that as to induce the wife to commit suicide.

Presumption against husband under Section 113A of the Evidence Act

After concluding the above issues, Court then considered the issue with respect to Section 113A of the Evidence Act. Though Court noticed that there is a presumption against the husband or such person under the section, the same does not discharge the burden of proof from the prosecution:

                                       “.....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”

Court noticed that no such burden has been discharged by the prosecution. Instead, it was noticed that the ‘suicide note’ had completely exonerated A-1. It was stated by the court that the deceased was very possessive towards her husband and this factor could have led to distress. Considering the situation of this case, conviction order against A-1, appellant in this case, was set aside.

Copy of the Judgment