Taking custody of bride’s jewellery not cruelty u/s 498A IPC: Supreme Court
The issue whether taking custody of the bride’s jewellery for safekeeping could be consider to fall within the purview of cruelty under section 498A of IPC was dealt and decided upon by a division bench of the Supreme Court consisting of Justice Indira Banerjee and Justice J K Maheswari in the matters between Deepak Sharma vs. State of Haryana and Ors. Criminal Appeal No. 83 of 2022 decided on 12.1.2022. The crux of the matter is that allegations was brought about that the complainant’s jewellery taken by the mother in-law and brother in-law, who is the appellant. The appellant is unable to leave country to go and join his employment in USA due to a case involving matrimonial dispute filed by the complainant where he is one of the accused.Both trial court and the Punjab and Haryana High Court, denied him permission to leave the country.This appeal is against the order of the high court to allow the  appellant to leave country. The petitioners contended allegations in the complaint against the Appellant do not, at first glance, reveal any offense against the Appellant, which is persecution, that is, an intentional act of a kind that could lead the woman to commit suicide, pursuant to Section 498A or cause serious injury or danger to the woman’s (physical or mental) life, limb or health. It is not even alleged that the Appellant extorted or misappropriated the complainant’s jewelry or even refused to comply with the same request. Detention of jewelry for security reasons cannot constitute persecution within the meaning of Section 498A of the IPC. There is no demand for dowry or property against the Appellant, or even allegation of threats or torture. From the respondent side, nodody appeared  for before the court in spite of notice.the complainant only alleged before the court that the appellant and his mother has detained all her gold and when she confronted him about the bad habits of her husband, he advised her to accept the culture of her husband or it will not turn out well. The apex court court held  that advising a wife to comply to avoid retaliation from her husband does not constitute cruelty within the meaning of Section 498A of the Indian Penal Code. Failure to control, live independently, or advise as an adult sibling and correcting the Complainant to avoid vengeful retaliation against her husband does not constitute cruelty by the Appellant. A valid passport, visa, and is the fundamental right of freedom to travel abroad cannot be overlooked only because the brother’s wife has filed a case of matrimonial dispute where he is an accused provided the evidences does not disclose any crime on his behalf.The bench believes that Chief Justice Kurukshetra made a mistake in instructing this Appellant not to leave the country without the prior permission of the Court.
IN THE CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 83 OF 2022 Arising out of S.L.P.(CRL.) No. 9762 OF 2021 O R D E R STATE OF HARYANA & ORS No one has appeared on behalf of the Respondent No.2 in spite This appeal is against an order dated 24.11.2021 passed by the High Court of Punjab and Haryana at Chandigarh dismissing Criminal Misc. No.33701 2021 in Criminal Miscellaneous Petition No. 339921 filed by the Appellant for permission to travel back to the United States of America where he has a job and resume his duties. The short question in this appeal is whether the Appellant can be denied his fundamental right of personal liberty to travel abroad subject to possession of a valid passport visa and other requisite travel documents only because he is arrayed as accused in a complaint filed by his brother’s wife against his brother being the husband of the complainant and his parents particularly mother and that too when the allegations in the complaint do not disclose any criminal offence on the part of the Appellant. The answer to the aforesaid question has to be in the negative. The Appellant is the brother in lawof the Respondent No.2and had been residing in the United States of America since 2009 on H1B Visa. The said Nitin Sharma apparently resides at Charlotte in North Carolina as would be evident from the array of accused persons in the complaint. It appears that there were differences and matrimonial disputes between the complainant and her husband Nitin Sharma brother of the Appellant from the inception of their marriage According to the complainant she was also harassed for dowry by her parents in law particularly mother in law. On 16.08.2019 the complainant returned to India allegedly at the behest of her in laws. In November 2019 the complainant’s parents in law returned to India. After the complainant’s parents in law returned the complainant and her parents tried to contact them and also tried to contact the complainant’s husband Nitin Sharma. The complainant’s in laws tried to avoid the complainant and her parents on one pretext or the other and the complainant’s husband Nitin Sharma did not answer their calls. The complainant was not allowed to live in her matrimonial home at Faridabad. On 07.09.2020 an FIR was filed by the complainant against her husband and in laws under Sections 323 34 406 420 498A and 506 of the Indian Penal Code 1860 was registered at the Thanesar City Police Station at Kurukshetra under Section 154 of the Criminal Procedure Code 1973. The complainant’s husband Nitin Sharma her father in law Suresh Chand Sharma her mother in law Satyawati Sharma and the Appellant were arrayed as Accused Nos. 1 2 3 and 4 In a nutshell the material allegations in the FIR were i) The accused pressurized the complainant’s family to organise the marriage ceremony of the complainant and the said Nitin Sharmaat Faridabad instead of Kurukshetra. As ceremonies functions were held at Kurukshetra and Faridabad complainant’s parents incurred expenditure of Rs.23 lakhs ii) The complainant’s mother in law had demanded gold ornaments of her choice saying that her elder daughter in law had brought 70 tolas of gold iii) After marriage the complainant’s in laws expressed dissatisfaction over the dowry brought by her. Her mother in lawtaunted her for bringing less dowry iv) The complainant’s mother in law insulted the complainant even more after a cousin of the complainant’s husband whose marriage took place three days after the complainant got married was gifted a car by the bride’s family. It is alleged that the complainant’s mother in law Accused No.3) demanded a car v) The complainant’s husbandwas not interested in her and found excuses to harass her. He returned home late in an inebriated state and fought with her without reason. After watching television till late at night he slept on the couch vi) The complainant s husbanddid not allow her to go out of the Apartment. He did not arrange for social security health insurance or driving licence for the complainant. He also did not allow her to obtain the same on vii) The complainant’s husbandmade the complainant dependent on him even for small things. He did not give attention to her health and smoked at home and also stocked non vegetarian food in the refrigerator though before marriage he had told her that he was a vegetarian and a non smoker. The complainant’s husband twisted her arms when she tried to stop him from smoking viii) On the pretext of going to play cricket the complainant’s husband left the house early and returned at 3 o’clock at night. She suspected he was living with a lady after she found lease documents in a closet. When the complainant asked her husband(Accused No.1) about the lease documents he left the apartment without giving any answer. He had been in a live in relationship with a woman before marriage. This had not been disclosed to the complainant. ix) On one occasion after the complainant’s husbandhad intoxicated himself with weed the complainant found weed pipe in her husband’s pocket. When she told this to her brother in law and his wife the complainant’s husband abused her pushed her and twisted her arm x) The complainant’s husbandtortured and harassed her with a view to make her leave or to compel her to commit xi) In June 2019 the complainant’s parents in lawwent to U.S.A. Instead of solving the complainant’s problems they both started harassing xii) The complainant’s mother in law gave the complainant stale food and scolded her without reason. When the complainant protested her husband rebuked her for raising her voice in front of her parents in law and xiii) The complainant’s husband’s family told the complainant to go to India so that they could reform her husband Accordingly she came to India in August 2019. xiv) When the complainant’s parents in law returned to India in November 2019 the complainant and her parents tried to contact them and also tried to contact the complainant’s husband avoided the complainant and her parents giving excuses and the complainant’s husband Accused No.1) did not take calls xv) The complainant’s parents in law The accused have collectively ruined the complainant’s life by falsely representing that the complainant’s husband(Accused No.1) was a vegetarian a teetotaller and non smoker when in fact he was a non vegetarian a chain smoker and an alcoholic and also by suppressing his live in relationship with another In the entire complaint there is no specific complaint against the Appellant. The only allegations against the Appellant are “My mother in law and my brother in law have taken all gold and have kept with them. I went to USA with one Mangal Sutra and Chain I am religious and vegetarian which was known to Nitin. For the purpose of harassing me he used to stock non veg in the refrigerator. Before marriage he himself stated that he is non smoker non drinker and vegetarian whereas truth was against this. He used to take intoxicated materials. One time I found weed pipe from his pocket. When this fact was brought into the notice of my brother in law he instead asked me to accept the culture of Nitin One day Nitin came after doing intoxication I thought that I found weed pipe earlier from his pocket and he may not have the habit of weed then I told about this to his brother and sister in law. On this Nitin started abusing and pushed me while twisting my arm and he had been playing psychological game and had been torturing and harassing so that either I myself leave him or commit suicide. My brother in law threatened me to remain quiet otherwise Nitin is a very bad enemy.” The allegations in the complaint against the Appellant prima facie do not disclose against the Appellant any offence under Section 498A of the IPC which contemplates cruelty that is willful conduct of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to the life limb or healthof the woman It is interesting to note that in the complaint the complainant has given the address of her husband in U.S.A. in addition to his permanent address at Faridabad. The complainant has for reasons known to herself not made any reference in her complaint to the fact that the Appellant is a resident of Texas where he is working. The complaint gives the impression that the Appellant is a resident of Faridabad. From the complaint itself it is patently clear that the Appellant does not reside in the same premises as his brother being the husband of the complainant. The averments in the pleadings in the Courts below read with the complaint show that they do not even live in the same place. The Appellant works in Texas U.S.A. whereas his brother lives and works in North Section 498A of the IPC is extracted hereinbelow for convenience : “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 The complainant has not given any particulars of the jewellery that had allegedly been taken by her mother in law and brother in law. There is not a whisper of whether any jewellery is lying with the Appellant. It is not even alleged that the Appellant forcibly took away or misappropriated the complainant’s jewellery or refused to return the same inspite of request. Taking custody of jewellery for safety cannot constitute cruelty within the meaning of Section 498A of the IPC. There is not even any allegation against the Appellant of any demand or threat or torture for dowry or property. Failure to control an adult brother living independently or giving advice to the complainant to adjust to avoid vindictive retaliation from the Accused No. 1 cannot constitute cruelty on the part of the Appellant within the meaning of Section 498A of the IPC. There are no specific allegations against the Appellant of misrepresentation or concealment. There is not a whisper of the Appellant’s role in the marriage negotiations that took place in India. As observed above the Appellant who is the elder brother in law of the complainant resides in U.S.A. There is only a general omnibus allegation that all the accused ruined the life of the complainant by misrepresentation concealment etc. On the face of the averments in the complaint the complainant’s husband made certain misrepresentations to her. The Appellant is not liable for the acts of cruelty or any other wrongful and or criminal acts on the part of his parents or brother. There is nothing specific against the Appellant except the vague allegation that the Appellant and his mother that is the complainant’s mother in law kept her jewellery. The only other allegation is that the Appellant had not done anything when the complainant had spoken to the Appellant about his brother’s conduct and behaviour he had told the complainant to remain quiet as Nitin could be a very bad enemy. In any event a deed of compromise has now been executed between the complainant and her husband being the Accused No. 1. A copy of the compromise settlement has been enclosed. The Appellant is not party to the settlement. Having regard to the nature of the allegations it is not understood how and why the Appellant should have been detained in India. In our considered opinion the Chief Judicial Magistrate Kurukshetra erred in directing this Appellant not to leave the country without prior permission of the Court. The High Court rejected the prayer of the Appellant to leave the country with the following observations “I have heard learned counsel for the Applicant Petitioner No.4 learned State Counsel and perused the record This Court vide order dated 13.10.2021 heard the parties and in view of the agreed position directed them to appear before the Magistrate concerned for recording their statement on 28.10.2021. Thereafter learned Chief Judicial Magistrate Kurukshetra sent its report dated 02.11.2021. It has been recorded in the statement that complainant respondent No.2 had stated that she is not willing to get her statement recorded regarding compromise as the divorce proceeding between her and her husband namely Nitin were pending before the Family Court Kurukshetra for 22.02.2022 for recording of the second motion statement. She stated that she wanted to get her statement recorded regarding compromise as well as under second motion on the same day as there was apprehension of fleeing away of her husband who is working in USA. As the complainant expressed her non willingness to get the statement recorded regarding compromise the statement of the parties could not be recorded. The main petition has been filed for quashing of the FIR on the basis of the compromise arrived at between the parties. As the complainant had the apprehension that the accused might flee to USA hence she expressed her willingness for not recording her statement till 22.02.2022 when the case is fixed before the Family Court for recording the second motion statement. In view of the statement made by the complainant respondent No.2 this Court finds no merit in the present application for allowing applicant petitioner No.4 to leave the country during pendency of the present petition. The application being devoid of any merit is hereby The apprehension that the husband of the complainantwho had been working in the U.S.A. might leave the country cannot be ground to deny the Appellant’s prayer to go back to the U.S.A. to resume his duties in a Company in which he has been working for about 9 10 years. The High Court has also not considered the allegations against the Appellant. There is not even any prima facie finding with regard to liability if any of the Appellant to the complainant. There are no specific allegations against the Appellant. The order of the High Court denying permission to this Appellant to leave the country is not sustainable in law and is set aside. The order of the Chief Judicial Magistrate is accordingly modified to the extent that this Appellant has been directed not to leave the country without prior permission of Court. The aforesaid condition shall stand deleted in respect of the Appellant(Accused No.4). It is made clear that the husband Nitin Sharma shall be bound by all the directions in the order dated 13.09.2021 passed by the Court of the Chief Judicial Magistrate Kurukshetra. The instant application was strongly opposed by the State This Court finds no merit in the contentions of the State. Ex facie the allegations in the FIR do not disclose any offence under the provisions of the IPC referred to in the FIR. Ms. Monika Gusain stated that charge sheet has been filed. She has not been able to point out what is the offence so far as this Appellant being the brother of Nitin Sharma living in the USA is concerned. The repetitive allegations in the complaint are directed against the husband of the complainant Nitin Sharma and his parents particularly his mother being the Accused No.2 The appeal is accordingly allowed. Pending applications if any stand disposed of accordingly New Delhi January 12 2022 ITEM NO.7 Court 8SECTION II B S U P R E M E C O U R T O F I N D I A RECORD OF PROCEEDINGS Petition(s) for Special Leave to AppealNo(s). 9762 2021 Arising out of impugned final judgment and order dated 24 11 2021 in CRM No. 33701 2021 passed by the High Court of Punjab & Haryana DEEPAK SHARMA Petitioner(s VERSUS THE STATE OF HARYANA & ORS. Respondent(s IA No. 164222 2021 EXEMPTION FROM FILING O.T Date : 12 01 2022 These matters were called on for hearing today HON BLE MS. JUSTICE INDIRA BANERJEE HON BLE MR. JUSTICE J.K. MAHESHWARI Mr. Manu Mridul Adv. Mr. Surya Kant AOR Ms. Priyanka Tyagi Adv Mr. Shalaj Mridul Adv. UPON hearing the counsel the Court made the following O R D E R Dr. Monika Gusain AOR Leave granted. 2 in spite of notice. No one has entered appearance on behalf of the Respondent No Heard the learned counsel for the parties. The order of the High Court denying permission to this Appellant to leave the country is not sustainable in law and is set aside. The order of the Chief Judicial Magistrate is accordingly modified to the extent that this Appellant has been directed not to leave the country without prior permission of Court. The aforesaid condition shall stand deleted in respect of the Appellant(Accused No.4). It is made clear that the husband Nitin Sharma shall be bound by all the directions in the order dated 13.09.2021 passed by the Court of the Chief Judicial Magistrate Kurukshetra. The instant application was strongly opposed by the State This Court finds no merit in the contentions of the State. Ex facie the allegations in the FIR do not disclose any offence under the provisions of the IPC referred to in the FIR. Ms. Monika Gusain stated that charge sheet has been filed. She has not been able to point out what is the offence so far as this Appellant being the brother of Nitin Sharma living in the USA is concerned. The repetitive allegations in the complaint are directed against the husband of the complainant Nitin Sharma and his parents particularly his mother being the Accused No.2 The appeal is accordingly allowed in terms of the signed Pending applications if any stand disposed of accordingly MANISH ISSRANI) COURT MASTER (NSH SIGNED ORDER IS PLACED ON THE FILE