Source: Bombay High Court 

Why in News? 

Recently, the Bombay High Court has held that no person other than relative of the husband can be charged under Cruelty and girlfriend of the husband cannot be held as his relative. 

• The aforesaid observation was held in the case of Vaishali Gawande v. State of Maharashtra.

What was the Background of Vaishali Gawande v. State of Maharashtra Case? 

• In the present case, the respondent was the wife of Mr. Nilesh, and the petitioner was the one Mr. Nilesh was allegedly having an extra marital affair. 
• The respondent and Mr. Nilesh married in the year 2007 and had a daughter out of wedlock. 
• The respondent filed a complaint against Mr. Nilesh for torturing her stating that the reason for such behavior is his affair with the petitioner. 
• The respondent filed the First Information Report (FIR) against her husband and the statements were recorded during the investigation. 
• Due to investigation the cause of harassment was the affair of Mr. Nilesh with the petitioner and therefore the chargesheet was also filed against the petitioner. 
• The petitioner argued that she is not the relative of Mr. Nilesh and therefore cannot be booked under Section 498A of Indian Penal Code, 1860 (IPC). 
• The petitioner also argued that she is a married woman, and false allegations have been made against her. 
• The petitioner in this case applied for quashing charges against her under Section 498A for the case pending before the Trial Court. 

What were the Court’s Observations?

• The Bombay High Court observed the provision of Section 498A of IPC. 
• The Bombay High Court stated that to be booked under Section 498A of IPC a person should be a relative of the husband. 
• The Bombay High Court held that the petitioner is not a relative of Mr. Nilesh and merely based on the allegations of having extra marital affair with the petitioner she cannot be charged under Section 498A of IPC. 
• The Bombay High Court quashed the charges against the petitioner and held that girlfriend of the husband cannot be charged for the offences of Dowry or Cruelty by the husband against his wife. 

What is Cruelty? 

About: 

• Section 498A of IPC was introduced in the year 1983 to protect married women from being subjected to cruelty by the husband or his relatives. 
• It states that if the husband or the relative of the husband of a woman, subjected such woman towards cruelty would be punished with imprisonment for a term which might extend to 3 years and may also be liable for fine. 
• The offence under this section is a cognizable and a non bailable offence. 
• The complaint under Section 498A may be filed by the women aggrieved by the offence or by any person related to her by blood, marriage or adoption. And if there is no such relative, then by any public servant as may be notified by the State Government on this behalf. 
• A complaint alleging commission of an offence under Section 498A can be filed within 3 years of the alleged incident. However, Section 473 Criminal Procedure Code, 1973 (CrPC) enables the Court to take cognizance of an offence after the period of limitation if it is satisfied that it is necessary to do so in the interest of justice. 

Meaning of Cruelty: 

• Cruelty Means as per Section 86 of BNS: 
  • Any willful 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 
  • 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.

Essential Elements: 

• For commission of an offence under Section 498A of IPC, following necessary elements are required to be satisfied: 
  • The woman must be married; 
  • She must be subjected to cruelty or harassment; 
  • Such cruelty or harassment must have been shown either by husband of the woman or by the relative of her husband.

Position under BNS:

• Section 85: 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. 

Position Under Hindu Law: 

• By the 1976 Amendment to Hindu Marriage Act, 1955 (HMA) cruelty was made a ground for divorce under Section 13(1)(ia). 
  • Section 13 – Divorce —  
    • Clause (1) states that any marriage solemnized, whether before or after the commencement of this Act, may, on a petition presented by either the husband or the wife, be dissolved by a decree of divorce on the ground that the other party— 
      • has, after the solemnization of the marriage, treated the petitioner with cruelty; or 
• Prior to 1976 cruelty was merely a ground for claiming judicial separation under Section 10 of the HMA 
  • Section 10 - Judicial separation — 
    • Clause (1) states that either party to a marriage, whether solemnized before or after the commencement of this Act, may present a petition praying for a decree for judicial separation on any of the grounds specified in sub-section (1) of section 13, and in the case of a wife also on any of the grounds specified in sub-section (2) thereof, as grounds on which a petition for divorce might have been presented. 
    • Clause (2) states that where a decree for judicial separation has been passed, it shall no longer be obligatory for the petitioner to cohabit with the respondent, but the court may, on the application by petition of either party and on being satisfied of the truth of the statements made in such petition, rescind the decree if it considers it just and reasonable to do so. 

Case Laws: 

• Arun Vyas v. Anita Vyas, (1999): the Supreme Court held that the essence of the offence in Section 498-A is cruelty. It is a continuing offence and on each occasion on which the woman was subjected to cruelty, she would have a new starting point of limitation. 
• Manju Ram Kalita v. State of Assam (2009): the Supreme Court held that for holding an accused guilty under Section 498A of IPC, it has to be established that the woman has been subjected to cruelty continuously/persistently or at least in close proximity of time to the lodging of the complaint and petty quarrels cannot be termed as cruelty to attract the provisions of Section 498A of IPC. 
• Sarah Mathew v. Institute of Cardio Vascular Diseases (2014): In this case, the Supreme Court held that for the computation of period of limitation under section 468 CrPC, the relevant date is the date of filing of the complaint or date of institution of prosecution and not the date on which the magistrate takes cognizance. 
• Japani Sahoo v. Chandra Sekhar Mohanty (2007): In this case, it was held that for the purpose of computing the period of limitation, the relevant date must be considered as the date of filing of complaint or initiating criminal proceedings and not the date of taking cognizance by a Magistrate or issuance of process by court.