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Depending on the facts and circumstances of the case, an extramarital affair could be considered “mental cruelty” under section 498(A) IPC – Madras High Court

Be that as it may, victim, categorically stated that the petitioner/husband was having extramarital relationship with one Datchayani, who was also prosecuted as accused/A6 for the offence under Section 494 of IPC., but, however, the Trial Court acquitted the said Datchayani as well as the petitioner for the offence of Section 494 of IPC. These were upheld by the High Court of Madras through single bench of Hon’ble Mr.Justice D.Bharatha Chakravarthy in the case of Nakkeeran @ JeroanPandy v. State & Anr. (Crl.R.C.No.333 of 2014).

The crux of the case is Thamarai Selvi, lodged a complaint Ex.P2, thereby alleging that she got married with the petitioner/accused 02.03.2000 and after the marriage, the first accused was not maintaining a proper relationship with the complainant and the first accused always used to hit her and other accused also abused her physically and ill-treated her. She also alleged that the first accused/petitioner herein committed bigamy and contracted a marriage with one Datchayani and thereafter, he totally neglected her, hence, the complaint. A case was registered in All Women Police Station against the petitioner herein and his mother Joshvin, who is the second accused, his brother / Maran as the third accused, One Lakshmi, wife of Maran as the fourth accused, his sister Juliee as the fifth accused and Datchayani, the alleged lady, who married the petitioner at the second time, as the sixth accused, for the offences under Sections 498(A), 406, 494 and 506(ii) of IPC. The led investigation proposed all the above accused guilty of the above-mentioned offenses, before the learned Judicial Magistrate. The Trial Court found that the other offences including that of the bigamy as not proved beyond reasonable doubt and therefore acquitted accused 2 to 6 in toto and the petitioner/accused for the other offenses of 406, 494 and 506(ii) but, convicting the petitioner/accused for the offence under Section 498(A) of IPC and sentenced him as aforesaid.

Learned counsel for the petitioner, stated there are three sets of allegations, which are there on record to drive home the charge of cruelty. First, Thamarai Selvi alleged that she has been subjected to physical torture and torture of demanding more dowry between the years 2000 to 2005. Those allegations are to be negated because, she herself in legal notice has said that Datchayani and her husband are living happily during the year 2000 to 2005. The second limb of allegations is regarding the specific incident dated 16.11.2005 and upon cross-examination, she herself went back on the said allegations and admitted in the cross-examination that the incident on 16.11.2005 did not happen. Therefore, what remains is the third limb of allegations of cruelty on account of the extramarital relationship of the petitioner. According to the Learned Counsel, the mere allegation of having extramarital relationship will not amount to mental cruelty so as to constitute an offence under Section 498(A) of IPC. In support of his submissions, the learned counsel relied upon the Hon’ble Supreme Court Judgment of Jogi & Ors., Vs. The State of Madhya Pradesh (Crl.A.No.1350 of 2021), and K.V.Prakash Babu Vs. State of Karnataka(2017 (11) SCC 176).

The Learned counsel appearing for the first respondent would submit that the evidence of Thamarai Selvi, coupled with her father, who witnessed the second marriage of the first accused/petitioner in Velanganni Temple & who had also witnessed the second marriage of the petitioner with the sixth accused, would conclusively prove that there was cruelty unleashed by the petitioner/accused against PW.1. Just because, the Trial Court acquitted the accused for the offence under Section 494 of IPC., the same would not be a reason for interfering with the finding of mental cruelty inflicted on PW.1 by the petitioner/accused having extramarital relationship. would submit that on a careful consideration of evidence of PW.1, it would be clear that she has categorically deposed in detail about the various physical and mental torture meted out to her by the first accused. As a matter of fact, the evidence of other witnesses would corroborate the said facts. The contents in the legal notice were not specifically put to her in the cross-examination and therefore, the allegations cannot be negated, on the strength of legal notice alone. He would also rely upon the Judgment of the Hon’ble Supreme Court of India in Munna Devi Vs. State of Rajasthan and another((2001) 9 SCC 631) and D.Stephens Vs. Nosibolla (AIR 1951 SC 196).

The single bench of Hon’ble Mr.Justice D.Bharatha Chakravarthy while relying on the case of K.V.Prakash Babu Vs. State of Karnataka(2017 (11) SCC 176) stated that “Therefore, looking at the evidence, which is on record, it is clear that there was extramarital relationship. It has caused such an effect on the mental health of Thamarai Selvi, which resulted in serious domestic discord and her leaving the matrimonial home. As a matter of fact, as per the evidence on record, Thamarai Selvi went out of the matrimonial home on 16.11.2005.

Considering all the factors cumulatively, I hold that the action of the petitioner/accused in having extramarital relationship, which has further caused grave mental trauma and affected the mental health of Thamarai Selvi, leading to serious circumstances, in conjunction with the act of Thamarai Selvi being forced to leave the matrimonial home, would amount to cruelty to her within Section 498(A) of IPC.

However, considering the facts and circumstances of the case I am inclined to modify the sentence of imprisonment alone imposed on the petitioner/accused by reducing it as six months imprisonment from that of one year. The Criminal Revision Case is accordingly partly allowed.

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Judgement reviewed by Himanshu Ranjan

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