Dr. B.S Chauhan, J.— This appeal has been preferred against the judgment and order dated 21-12-2001 of the High Court of Gauhati in Criminal Revision (P) No. 578 of 2000 by which the High Court concurred with the finding of facts recorded by the trial court dated 22-12-1999 passed by the Additional Chief Judicial Magistrate, Kamrup, Guwahati in Case No. GR-1957 of 1997; and of the appellate court, the Sessions Judge, Kamrup dated 13-10-2000 passed in Criminal Appeal No. 3 of 2000 that the appellant was guilty of committing the offences under Sections 494 and 498-A of the Penal Code, 1860 (in short “IPC”) and sentenced him to undergo rigorous imprisonment for two years under Section 498-A and for three years under Section 494 IPC. However, both the sentences were directed to run concurrently.
2. The facts and circumstances giving rise to this appeal are that the appellant, a government servant, got married with Smt Minati Das (Kalita), the complainant on 5-2-1992 as per Hindu rites. Smt Minati Das (Kalita) gave birth to a male child on 10-3-1993. However, the relationship between the husband and wife was not cordial as it was alleged by the wife that she was being tortured mentally and physically by the appellant.
3. The complainant left the matrimonial home and started living with her father and was residing therein since 1993. In 1997 she came to know that the appellant got married with one Ranju Sarma on 2-2-1997 at Tukeswari Temple. Thus, she filed an FIR against the appellant.
4. The appellant was charged under Sections 498-A/494 IPC by the Chief Judicial Magistrate, Guwahati. The appellant defended himself before the trial court denying all the charges. However, considering the evidence on record, the trial court found both the charges proved against the appellant beyond reasonable doubt and after convicting him for the said offences, awarded the sentences as mentioned hereinabove vide judgment and order dated 22-12-1999 (Annexure P-12). Being aggrieved, the appellant preferred Appeal No. 3 of 2000 which was dismissed by the appellate court vide judgment and order dated 13-10-2000 (Annexure P-13). The appellant further approached the Gauhati High Court by filing Criminal Revision (P) No. 578 of 2000 which has been dismissed by the impugned judgment and order dated 21-12-2001. Hence, this appeal.
5. Shri S.K Bhattacharya, learned counsel appearing for the appellant has raised all the contentions which the appellant had raised before the courts below, inter alia, that there was no valid marriage with Smt Ranju Sarma as the marriage had taken place before a Hindu deity and that there was no case of mental or physical torture to bring home the charges under Section 498-A IPC. Thus, the appeal deserved to be allowed.
6. On the contrary, Mr Riku Sharma, learned counsel appearing on behalf of the respondent State submitted that there are concurrent findings of facts by the three courts below so far as the issue of marriage of the appellant with Smt Ranju Sarma is concerned. This Court should not interfere with the findings so recorded, being the fourth court entertaining this matter.
7. So far as the attraction of the provisions of Section 498-A is concerned, Mr Sharma submitted that the appellant subjected the complainant (legally wedded wife) to physical and mental torture and agony, thus the charges have rightly been found proved against him by all the three courts. Therefore, there is no occasion for this Court to interfere in the matter. The appeal is liable to be dismissed.
8. We have considered the rival submissions made by learned counsel for the parties and perused the record.
9. So far as Issue 1 is concerned i.e as to whether the appellant got married with Smt Ranju Sarma, is a pure question of fact. All the three courts below have given concurrent finding regarding the factum of marriage and its validity. It has been held to be a valid marriage. It is a settled legal proposition that if the courts below have recorded the finding of fact, the question of reappreciation of evidence by the third court does not arise unless it is found to be totally perverse. The higher court does not sit as a regular court of appeal. Its function is to ensure that law is being properly administered. Such a court cannot embark upon fruitless task of determining the issues by reappreciating the evidence.
10. This Court would not ordinarily interfere with the concurrent findings on pure questions of fact and review the evidence again unless there are exceptional circumstances justifying the departure from the normal practice.
“8. … The position may undoubtedly be different if the inference is one of law from [the] facts admitted and proved or where the finding of fact is materially affected by violation of any rule of law or procedure.”
[Vide Firm Sriniwas Ram Kumar v. Mahabir Prasad AIR 1951 SC 177 (AIR p. 179, para 8), Tulsi Das Khimji v. Workmen AIR 1963 SC 1007 and Pentakota Satyanarayana v. Pentakota Seetharatnam (2005) 8 SCC 67, AIR 2005 SC 4362.] Where the court below considered the material facts and did not take into consideration any inadmissible evidence, etc. the interference is not required by court on third instance. (Vide Madhavan Nair v. Bhaskar Pillai (2005) 10 SCC 553.)
11. Thus, it is evident from the above that this Court being the fourth court should not interfere with the exercise of discretion by the courts below as the said courts have exercised their discretion in good faith giving due weight to relevant material and without being swayed by any irrelevant material. Even if two views are possible on the question of fact, we, being the fourth court, should not interfere even though we may exercise discretion differently had the case come before us initially. In view of the above, we are not inclined to interfere with the finding of fact so far as the issue of bigamy is concerned nor the quantum of punishment on this count is required to be interfered with.
12. Issue 2 relates to the applicability of Section 498-A IPC. It has been alleged by the complainant that she had been given physical and mental torture by the appellant and it was not possible for her to stay with the appellant after 1993 though she was having seven months' pregnancy at that time. She gave birth to a male child in the hospital and the appellant did not even come to see the child. The question would arise as to whether in the facts and circumstances where the complainant had left the matrimonial home and started living with her father in 1993, could a case be registered against the appellant under Section 498-A IPC in 1997?
13. The provisions of Section 498-A IPC read as under:
“498-A. 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.
Explanation.—For the purposes of this section, ‘cruelty’ means—
(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 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.”
Cruelty has been defined by the Explanation added to the section itself. The basic ingredients of Section 498-A IPC are cruelty and harassment.
14. In the instant case, as the allegation of demand of dowry is not there, we are not concerned with clause (b) of the Explanation. The elements of cruelty so far as clause (a) is concerned, have been classified as follows:
(i) any “wilful” conduct which is of such a nature as is likely to drive the woman to commit suicide; or
(ii) any “wilful” conduct which is likely to cause grave injury to the woman; or
(iii) any “wilful” act which is likely to cause danger to life, limb or health, whether physical or mental of the woman.
15. In S. Hanumantha Rao v. S. Ramani (1999) 3 SCC 620, AIR 1999 SC 1318 this Court considered the meaning of cruelty in the context of the provisions under Section 13 of the Hindu Marriage Act, 1955 and observed that:
“8. … Mental cruelty broadly means, when either party causes mental pain, agony or suffering of such a magnitude that it severs the bond between the wife and the husband and as a result of which it becomes impossible for the party who has suffered to live with the other party. In other words, the party who has committed wrong is not expected to live with the other party.”
16. In V. Bhagat v. D. Bhagat (1994) 1 SCC 337, AIR 1994 SC 710 this Court while dealing with the issue of cruelty in the context of Section 13 of the Hindu Marriage Act, observed as under:( & 349, paras 16-17)
“16. … It is not necessary to prove that the mental cruelty is such as to cause injury to the health of the petitioner. While arriving at such conclusion, regard must be had to the social status, educational level of the parties, the society they move in, the possibility or otherwise of the parties ever living together in case they are already living apart and all other relevant facts and circumstances which it is neither possible nor desirable to set out exhaustively. What is cruelty in one case may not amount to cruelty in another case. It is a matter to be determined in each case having regard to the facts and circumstances of that case. If it is a case of accusations and allegations, regard must also be had to the context in which they were made.
17. … ‘18. … The context and the set-up in which the word “cruelty” has been used in the section, seems to us, that intention is not a necessary element in cruelty. That word has to be understood in the ordinary sense of the term in matrimonial affairs. If the intention to harm, harass or hurt could be inferred by the nature of the conduct or brutal act complained of, cruelty could be easily established. But the absence of intention should not make any difference in the case, if by ordinary sense in human affairs, the act complained of could otherwise be regarded as cruelty. …’”
17. In Mohd. Hoshan v. State of A.P (2002) 7 SCC 414 this Court while dealing with the similar issue held that mental or physical torture should be continuously practised by the accused on the wife. The Court further observed as under:
“6. Whether one spouse has been guilty of cruelty to the other is essentially a question of fact. The impact of complaints, accusations or taunts on a person amounting to cruelty depends on various factors like the sensitivity of the individual victim concerned, the social background, the environment, education, etc. Further, mental cruelty varies from person to person depending on the intensity of sensitivity and the degree of courage or endurance to withstand such mental cruelty. In other words, each case has to be decided on its own facts to decide whether the mental cruelty was established or not.”
18. In Raj Rani v. State (Delhi Admn.) (2000) 10 SCC 662, AIR 2000 SC 3559 this Court held that while considering the case of cruelty in the context of the provisions of Section 498-A IPC, the court must examine that allegations/accusations must be of a very grave nature and should be proved beyond reasonable doubt.
19. In Sushil Kumar Sharma v. Union of India (2005) 6 SCC 281, AIR 2005 SC 3100 this Court explained the distinction of cruelty as provided under Sections 306 and 498-A IPC observing that under Section 498-A cruelty committed by the husband or his relation drives the woman to commit suicide, etc. while under Section 306 IPC, suicide is abated (sic abetted) and intended. Therefore, there is a basic difference of the intention in application of the said provisions.
20. In Girdhar Shankar Tawade v. State of Maharashtra (2002) 5 SCC 177, AIR 2002 SC 2078 this Court held that “cruelty” has to be understood having a specific statutory meaning provided in Section 498-A IPC and there should be a case of continuous state of affairs of torture by one to another.
21. “Cruelty” for the purpose of Section 498-A IPC is to be established in the context of Section 498-A IPC as it may be different from other statutory provisions. It is to be determined/inferred by considering the conduct of the man, weighing the gravity or seriousness of his acts and to find out as to whether it is likely to drive the woman to commit suicide, etc. It is to be established that the woman has been subjected to cruelty continuously/persistently or at least in close proximity of time of lodging the complaint. Petty quarrels cannot be termed as “cruelty” to attract the provisions of Section 498-A IPC. Causing mental torture to the extent that it becomes unbearable may be termed as cruelty.
22. The instant case required to be examined taking into consideration the aforesaid settled legal provisions. Undoubtedly, there had been complaint by the wife of physical and mental torture up to 1993 when she left the matrimonial home and started living with her father. The complaint of cruelty was lodged by filing an FIR on 23-5-1997 i.e after four years of leaving the matrimonial home. More so, the mental or physical torture was not continuous on the part of the appellant as there is no complaint against him between 1993 to 1997 i.e leaving the matrimonial home by the wife and performing the second marriage by the husband. The complainant Smt Minati Das (Kalita), PW 3 deposed that she had been tortured physically and mentally but there was no allegation that she was subjected to physical or mental torture after the birth of the child in 1993. Similarly, Shri Lakhi Kt. Das (PW 1), the father of the complainant has not mentioned any incident of physical or mental torture after 1993. None of the witnesses examined in this respect deposed that there was a continuous physical or mental torture and some untoward incident occurred between the husband and wife after 1993.
23. The trial court, after considering the depositions, came to the conclusion that the appellant being husband of the complainant subjected her to cruelty both mental and physical. But it further held as under:
“No doubt there is no evidence on the record to show that the accused committed harassment on PW 3 with a view to force her to commit suicide or to fulfil illegal demands of him. The continuous harassment, both physical and mental by the accused made her life miserable and forced her to live separately from her husband.”
(emphasis added)
24. The appellate court dealt with the issue as under:
“Her specific evidence is that the cruelty, both physical and mental was meted to her by her husband after the marriage and this has been well supported by the evidence of the witnesses as discussed above. Her mental torture had reached to such an extent that she had to leave her matrimonial home along with the baby in the womb and this has been well testified in the evidence on record.”
(emphasis added)
25. The High Court considered the issue and reached the conclusion:
“The offence under Section 498-A IPC is punishable with imprisonment up to three years only and as such the prosecution is barred under Section 468 CrPC. In view of a catena of decisions of the Apex Court, the law is well settled that offence of cruelty to wife is a continuing offence. Hence the fact that the wife was not living with the husband since 1993 is immaterial and mental and other cruelty may be committed even after the parties are living separately.”
26. The High Court further held that during the subsistence of the marriage, the appellant contracted second marriage and started living with another woman, that itself was a cruelty and therefore he was liable for the punishment under Section 498-A.
27. Thus, from the above, it is evident that the trial court itself had been of the view that there was no evidence of cruelty on the part of the appellant with a view to drive the complainant to commit suicide. The appellate forum reached the conclusion that mental torture was of the magnitude that the complainant had to leave her matrimonial home during her pregnancy. The Revisional Court did not find that the complainant had been subjected to cruelty continuously. Thus, in our opinion, all the three courts below erred in not considering the case in correct perspective. The findings so recorded by the courts below may be relevant for granting the relief in a matrimonial dispute i.e divorce, etc. but could not bring home the charge under Section 498-A IPC.
28. Thus, in view of the aforesaid, conviction of the appellant under Section 498-A IPC and punishment for the said offence awarded by the courts below are set aside. However, conviction and sentence under Section 494 IPC are maintained. The appeal succeeds to the said extent and is disposed of accordingly.