Adultery is not cruelty, Supreme Court says

NEW DELHI: Merely being "intimate" with another woman is not sufficient ground for a man to be held guilty of inflicting cruelty on his wife on the charge of failing to discharge his marital obligations, the Supreme Court ruled on Monday.

Only if treatment meted out to the wife is of a nature as is likely to drive her to commit suicide will it fall within the ambit of Section 498A of IPC, a provision of the penal code providing up to three years in jail, said the bench.

"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," said a bench of Justices K S Radhakrishnan and P C Ghose.

The SC reading of what constitutes cruelty brought relief to a man who had been convicted by both the trial court and the high court for behaviour that resulted in the suicide of his wife due to an alleged extra-marital affair at his place of work.

The ruling came in a case where the wife committed suicide suspecting the husband of intimacy with a woman colleague in office. The trial court and the Gujarat high court held him guilty under Section 498A for causing cruelty to his wife and under Section 306 of IPC for abetting suicide.

"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," the bench said.

But keeping in view the case before it, the apex court set aside the concurrent judgments to exonerate the man of any wrongdoing and said, "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 (husband) had ever intended or acted in such a manner which under normal circumstances, would drive the wife to commit suicide."

Writing the judgment for the bench, Justice Radhakrishnan said to charge a husband for abetment of suicide, the prosecution must establish that the wife's suicide was a direct result of the extra-marital affair.

"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," the court said.

"We have on facts found that, at best, the relationship of A-1 (the husband) and A-2 (the other woman) was a one-sided love affair. The accused might have developed some liking towards A-2, his colleague, (but) 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," the court said.

Referring to the wife's suicide note, the bench said, "On reading the suicide note, one can infer that the deceased was so possessive of her husband, and was always under 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."  http://timesofindia.indiatimes.com/india/Adultery-is-not-cruelty-Supreme-Court-says/articleshow/22445870.cms 

PIL questions immediate arrests in dowry harassment cases

JAIPUR: A division bench of the high court has asked state government to give its reply to a PIL filed by one Vinod Singhal who questioned immediate arrests in cases pertaining to Section 498A (dowry harassment) and Section 406 of IPC (criminal breach of trust) filed by aggrieved wives against husband and his relatives.
The petition alleges that 70% matrimonial disputes are being converted into criminal cases by misuse of the provisions of Sections 498A and 406 of IPC. It has been alleged that once such a false criminal case is filed against the husband and his relatives the police immediately arrest the accused resulting in vanishing of chances of reconciliation between the warring husband and wife.
The PIL raises a point that since the offences are non-bailable, some guidelines must be issued so as to see that no husband or his relatives are arrested on false complaints. The petitioner demands that instead of registering the FIR immediately, the police must first call the parties for conciliation and in case the dispute remains unresolved, then only action should be initiated against the guilty husband and his relatives.
It has also been highlighted in the petition that in the recent past the Supreme Court too had observed that the law made for protection of women is being misused and has asked the Law Commission of India to report as to whether the law can be made bailable. The division bench of Chief Justice Amitava Roy and Justice V S Siradhana directed that a copy of the PIL be supplied to the government advocate.
http://articles.timesofindia.indiatimes.com/2013-07-09/jaipur/40468015_1_pil-questions-dowry-harassment-cases-division-bench

Majority of rape and dowry death cases are settled out of court

Though clamour for stringent punishment for those accused of crime against women is getting louder, the fate of such cases is still beyond expectations.
From January to August this year
Of the total 115 cases registered under sections 304-B (dowry death) and 376 (rape) of the Indian Penal Code (IPC) reached in Rohtak court, in 31 cases, the perpetrators of crime were let off in want of evidence, while five could be nailed.
Following the nation's outcry on bone chilling gang rape with a paramedical student in New Delhi, the high court had ordered the district court to speed up pending cases of crime against women in district courts.
As per available data, in January, in three accused of rape (different cases)were acquitted in lack of evidence, while one accused of dowry death was also set free for the same reason. No one was convicted in this month. In February, four rape accused were set free, while one was convicted and one was convicted in dowry death in the same month.
In March, three perpetrators were set free by court here, while no one was convicted in rape and dowry death. In April, three were acquitted in rape and one was acquitted in dowry death, while one each was convicted in rape and dowry death.
In May, the case of rape could not stand legal scrutiny and three were set free, while one was set free in dowry death. Court remained off in June month. In July, five rape accused were released, while two were set free, who were booked by police on dowry death.
The result remained non-impressive in August month, two rape accused were set free, while three dowry death were acquitted in lack of evidence. Sources inside court maintained that majority of the rape and dowry death cases fall flat in court, as a result of out of court settlement.
In such cases, the popular modus operandi is to refuse to identify the accused inside the court, which weakens the cases and accused were let off. In some cases, the accused and victim get ready to withdraw the case on the promise of marriage in presence of panchayat members from both sides.
In one such case (rape) registered on 13/08/2013 by a dalit girl on a Punjabi community boy, the victim later refused act of rape on her.
The court of additional district and session judge Seema Singhal on 13/08/2013 had imposed a fine of Rs.1000 on the victim and a punishment of one day(Till the Court rise).
Currently, 66 rape and Prevention of Children from Sexual Offences Act and 14 dowry death cases are pending in court.

http://www.hindustantimes.com/India-news/Haryana/Majority-of-rape-and-dowry-death-cases-are-settled-out-of-court/Article1-1118434.aspx 

Naval officer commits suicide

A Naval officer, Lt. Francis S. D’Costa, posted at INS Kadamba in Karwar, committed suicide by hanging at his residence on Saturday. The officer was staying with his wife, two children and mother-in-law. He came to INS Kadamba 20 days ago from the Naval Detachment at Nagapattinam. The police have recovered a suicide note.

http://www.thehindu.com/todays-paper/tp-national/tp-karnataka/naval-officer-commits-suicide/article5106053.ece 

Bail, not jail, the norm, says SC, but the reality is opposite

MUMBAI: Bail, not jail, is a dominant principle of criminal law practised by every mature democracy and in India often in its breach. Be it A Raja or Kanimozhi in the 2G case, Suresh Kalmadi in the CWG case or Asaram, facing an unproven sexual assault charge, once a case becomes high profile courts are diffident to grant bail even if that flies against the express directive of the Supreme Court.
The same neglect of the principle is often seen in the case of thousands of undertrial prisoners — people who fall in a category that's quite the opposite of the high-profile cases; men and women without resources, financial or political — who are left to languish in jail for want of bail orders from trial courts.

A Mumbai lawyer says: "It's not only the underprivileged who fail to secure justice at a pre-trial stage, even highprofile arrests — cases that attract media hype — are often denied bail without adequate reasons for days or months." While releasing a bunch of accused in the 2G scam case, the SC reinforced that bail ought to be a norm, not jail.
Stiff opposition by police to bail applications even when investigations are over and the accused not likely to flee, has become the norm, lawyers said. Senior crime counsel Amit Desai said: "The court must be alive to the fact that liberty, a fundamental right, is taken away in such instances. It must ensure that the investigating officer concentrates on investigation that requires an accused to be in custody so that he can secure his liberty at the earliest.''
Police often treat denial of bail as an "easy route'', say experts. "Trials take time to begin. Often pre-trial incarceration exceeds maximum punishment for the charges invoked or becomes an incentive for police not to create a water-tight case on evidence,'' said advocate Saurabh Kirpal from Delhi. He added: "It becomes an easy route not to work hard at getting a conviction and treat pre-trial custody as substitute punishment."
There are times when despite long pre-trial jail, the case may end with an acquittal, which makes a mockery of justice. The need for an arrest is to secure presence of the accused for investigation, prevent further crimes and escape, make the community safer if the accused is prone to violence, and witness tampering. When these factors are absent, bail should be automatic.
Ashok Desai, former attorney general, said, "The object of denying bail cannot be punitive because punishment starts after conviction. Until then the accused is deemed innocent. Although bail, not jail, is the principle, there are two main factors to deny bail — possibility of the accused absconding and probability that he may interfere with the investigation and witnesses.
"A court has to balance the valuable right of liberty and the interest of society. It's here that often the prosecution suggests that if the offence is serious or the accused is an influential person, there's a danger of his absconding. This is why courts can impose conditional bail. If a condition is transgressed, the bail can be cancelled. Bail cannot be denied to teach a lesson to one whose offence is yet to be proved."
A series of commissions, from the third police commission to the law commission, stressed how police misuse arrest-powers. Ram Jethmalani, ace defence counsel, has for decades stressed that "pretrial arrest is neither meant to be punitive nor a punishment before verdict. It's meant to facilitate investigation." If an accused cooperates with the police and submits himself for investigation there's no justification for arrest, he said.
Senior Supreme Court counsel CA Sundaram said that legally, bail is a right. Advocate Harshad Ponda said liberty is guaranteed as a fundamental right. Under the right to life, liberty cannot be denied without adequate reason. Except when justified in heinous crimes such as rape, murder and dacoity.
Added Shrikant Bhat, a leading crime counsel in Mumbai: "The SC in 1994 laid down guidelines that hold good today. It proscribed police from using their power to arrest, just because it exists, without justification." Advocate Aabad Ponda said: "The amendment to the CrPC is to bring in some checks on indiscriminate and liberal arrests without any warrant by police.'' Every offence classified as non-bailable does not justify an arrest, said advocate Anand Grover.
Even in jurisdictions abroad, as in Florida, the law is firm that bail applications be decided on grounds that don't impinge on a person's liberty more than necessary to aid investigation or secure society's interest.

http://articles.timesofindia.indiatimes.com/2013-09-08/india/41873447_1_denying-bail-conditional-bail-cwg-case