Court: Karnataka High Court
Bench: JUSTICE H.N. Narayan
Smt. Sumangala Vs. Laxminarayan Anant Hegde & Anr. On 14 January 2003
Law Point:
Father of minor taking away his child from custody of mother even without informing her and who is legally entitled for custody of child : That act does not amount to cruelty to her under Section 498-A I.P.C.
JUDGEMENT
1. Heard Mr. S.R. Hegde Hudlamane, learned Counsel for the petitioner and perused the impugned judgment.
2. The short question which falls for consideration in this revision is :
Whether the act of husband taking away his minor child without consent or knowledge of the mother, i.e., his wife, amounts to cruelty to the mother under Sections 498-A of I.P.C. ?
3. The learned Counsel for the petitioner has invited my attention to the judgment of the Division Bench of the Allahabad High Court in Vijay Kumar Sharma & Ors. v. State of U.P., I (1991) DMC 244 (DB)=1991 (1) Crimes 298. After considering this question, the Allahabad High Court held as follows :
“We are of the view that taking away the son of Smt. Savita Sharma by the petitioners in this case without information to Smt. Savita Sharma of the said fact amounts to cruelty inasmuch as by the said conduct of the petitioners it could be much possible that Smt. Savita Sharma could either be driven to commit suicide or it could cause grave injury or danger to life, limb or health (whether mental or physical) of the woman. We also find that the said conduct of the petitioners, if proved, amounted to cruelty vide Explanation (b) to Section 498-A, as the intention to take away the child could be nothing else but to harass Smt. Savita Sharma on account of her failure to meet the demand of dowry.”
Their Lordships of the Allahabad High Court were considering the question whether a complaint lodged at a particular police station has jurisdiction to investigate the offences alleged against the accused-petitioners for offences punishable under Sections 498-A, 364 and 506 of the I.P.C., read with Section 3/4 of the Dowry Prohibition Act. The Allahabad High Court incidentally held that taking away the minor child by the father from the custody of the mother is not abduction and is not an offence under Section 364 of the I.P.C.
4. In the case on hand, Sirsi Police prosecuted the respondent-husband and mother-in-law of the petitioner, alleging the offences punishable under Sections 498-A, 506 read with Section 34 of the I.P.C., and Sections 3 and 4 of the Dowry Prohibition Act. The learned Magistrate found no reliable and credible evidence in proof of these charges against accused and, therefore, recorded an order of acquittal. I do not propose to deal with other contentions urged in the revision petition as I find no merit from the perusal of the impugned judgment. In this background, the learned Counsel for the petitioner has submitted that forcibly taking away the minor child from the custody of the mother amounts to cruelty as defined under Section 498-A of the I.P.C.
5. The new Webster’s Dictionary (College Edition – 1988) has given the meaning to the word ‘Cruel’ as follows :
“Disposed to give pain to others 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.”
Explanation to Section 498-A of the I.P.C., defines “cruelty” as follows :
(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 a harassmnent is with a view to coercing her or any person relates 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.
6. In Vijay Kumar Sharma’s case, the Allahabad High Court, on appreciation of the material placed before it found that the minor child was taken away by the husband and his relatives from the custody of the mother in order to coerce her to meet their illegal demand for dowry. These observations were made by the Bench of the Allahabad High Court while considering that case even at the preliminary stage of investigation itself. The Bombay High Court in Ravindra Prayrelal Bidhan v. State or Maharashtra, 1993 Cr.LJ 3019 (Bom.), held that ‘cruelty’ is not mere harassment or mere demand for property, etc. There must be reasonable nexus between cruelty and suicide for proof of cruelty.
7. The new provision of Section 498-A of I.P.C., extends protection to the woman from the whims and caprices of man. This section was incorporated in the statute to fill in the lacuna in the existing law, so that if the wife commits suicide, the guilty does not escape ‘cruelty’ as defined in Section 498-A. Cruelty defined under Section 498-A of the I.P.C., means 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 harassment is with a view to coerce her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand. The expression ‘cruelty’ takes within its sweep both mental and physical agony and torture. It is undisputed that the concept of ‘cruelty’ varies from place to place and individual to individual and according to the social and economic status of the person involved. Whether the act complained of was an act of cruelty, has to be determined from the whole fact and relationship between the parties. The cultural and temperamental state of the life among them are factors from where the cruelty has to be inferred and will depend on the facts of each case. Therefore, to decide the question of ‘cruelty’ the relevant facts are the matrimonial relationship between the husband and wife, their cultural and temperamental status in life, state of health, their interaction in their daily life which dominate the aspect of cruelty. Views of this nature are found in the judgment of the Bombay High Court in Sarojakshan Shankaran Nayar v. State of Maharashtra, (1995) 2 CR 47 (Bom.).
8. Therefore, the object of Section 498-A of the I.P.C., is essentially to curb the tendency of the unbridled conduct of the husband towards his wife. The provisions are introduced to give protection to the married woman. It is true that a married woman can be harassed, ill-treated by the husband or his relatives in any manner. Sometimes this harassment drives her to commit suicide, in which case the act amounts to an offence punishable under Section 306 of the I.P.C. But, there are any number of matrimonial disputes which come up before the Courts of Law for settlement where the Court finds innumerable difficulties between the husband and wife but where allegation of extreme cruelty is made, it is always the duty of the Court to find from evidence whether allegations of cruelty are true, if so, whether those allegations amount to cruelty as defined under Section 498-A of the I.P.C. There may be instances and instances where the emotional lady may commit suicide the moment a word is uttered in anger or in haste. Therefore, cruelty contemplates the conduct of the husband who intentionally causes harassment to drive his wife to commit suicide or to cause injury to her life, limb, etc. In the absence of any such circumstances, it is difficult to comprehend that such conduct of the husband amounts to cruelty as defined under Section 498-A of the I.P.C.
9. Where differences arose between the husband and wife, specially where the disgruntled parties have an issue and that minor child is in the custody of father or mother, invariably the other spouse throngs for the custody of the child. It is intense in the case of the mother. Law has provided sufficient means to secure the custody of the minor child and the Courts have to decide that question on the merits of each case. Therefore, where a father of the minor takes away his child from the custody of the mother even without informing her and who is legally entitled for the custody of the child, that act does not amount to subjecting her to cruelty for the purpose of Section 498-A of the I.P.C.
10. In view of what is stated above, I find it difficult as a matter of fact to concur with the view expressed by the Division Bench of the Allahabad High Court in the case cited supra.
11. In the result, this revision fails and it is dismissed without being admitted.
Revision dismissed.
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