In a pertinent, powerful and pragmatic judgment titled Nakkeeran @ Jeroan Pandy vs State & Anr. in Crl.R.C. No. 333 of 2014 : 2022 LiveLaw (Mad) 40 that was delivered finally on 7.12.2021, the Madras High Court has very commendably, courageously and convincingly held that if a husband's extramarital relationship causes serious domestic discord between the married couple, he can be convicted of causing mental cruelty to his wife under Section 498A of the Indian Penal Code (IPC) and sentenced to imprisonment.

By implication this also definitely means that those men who are married must certainly refrain from indulging in any kind of extramarital relationship because if they don't refrain themselves then they will be themselves inviting trouble and jail for themselves which no men would certainly ever like in his senses! By implication this also means that for men who are bachelors there is no such sword of imprisonment hanging like Damocles sword over their head!

It must be mentioned here that this extremely commendable judgment was passed by Justice D Bharatha Chakravarthy while confirming Nakkeeran, alias Jeroan Pandi's conviction by a trial court in Tiruvannamalai district in November 2011. However, the Judge reduced the sentence from two years to six months of rigorous imprisonment. This judgment demonstrates zero tolerance for extramarital relationship by husband as is quite ostensible also.

To start with, in this judgment by the single Judge Bench of Justice D Bharatha Chakravarthy of Madras High Court, it is mentioned about the prayer made that, Criminal Revision Petition is filed under Section 397 r/w 401 of Criminal Procedure Code, to set aside the Judgment made in Crl.A.No.25 of 2011 on the file of the Sessions Judge, Tiruvannamalai dated 30.01.2014, confirming the Judgment made in C.C.No.373 of 2007, on the file of the Judicial Magistrate Court, Arani, dated 25.11.2011.

It is then stated in para 1 that:
This Criminal Revision Case is filed by the petitioner/accused No.1, against the Judgment of the Learned Judicial Magistrate, Arani, in C.C.No.373 of 2007, dated 25.11.2011, thereby convicting him for the offence under Section 498(A) of IPC., and imposing a sentence of two years Rigorous Imprisonment and a fine of Rs.3,000/-, in default of payment of fine to undergo three months Simple Imprisonment, even while acquitting the petitioner/accused of the offence under Section 406, 494 and 506(ii) of IPC., as also the other accused 2 to 6, in this case and the conviction and sentence being confirmed by the Learned Sessions Judge, Thiruvannamalai, by Judgment dated 30.01.2014 in Crl.A.No.25 of 2011.

To put things in perspective, the Bench then envisages in para 2 that:
On 17.02.2006, PW.1/Thamarai Selvi, lodged a complaintEx.P2, thereby alleging that she got married with the petitioner/accused on 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. Apart from mentioning specific incidents 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.

Be it noted, the Bench then enunciates in para 7 that:
The Learned Judicial Magistrate proceeded to hear the arguments of the Learned Assistant Public Prosecutor and the learned counsel appearing for the accused. By Judgment dated 25.11.2011 it found that there is a valid marriage between PW.1 and the petitioner/first accused. As per the evidence of PW.1 coupled with PW.2, the accused had tortured PW.1, after getting her salary, to get more money from her parents and because of the vagabond life led by the first accused, he has been inflicting cruelty on PW.1. Therefore, PW.1 had to come out of the matrimonial home. PW.1 was harassed, by demands of more dowry and found that the accused had been committing cruelty from the years 2000 to 2005. 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.

Needless to say, the Bench then points out in para 8 that:
Aggrieved by the findings and sentence, the petitioner herein filed an appeal in Crl.A.No.25 of 2011 before the learned Sessions Judge, Thiruvannamalai and by Judgment dated 30.01.2014, after considering the evidence on record in paragraph Nos.12 and 13, the Appellate Court confirmed the findings and conclusions reached by the Trial Court. As a matter of fact, in paragraphs Nos.15 & 16, the appellate court held that even A2 to A5 are liable to be punished, but the prosecution had not filed any Cross Appeal. Therefore the appellate court confirmed the conviction as well as the punishment against the petitioner. Thereupon, this Criminal Revision is laid before this Court.

As it turned out, the Bench then observed in para 9 that:
Heard Mr.B.M.Subash, learned counsel for the petitioner. According to him, there are three sets of allegations, which are there on record to drive home the charge of cruelty. First, PW.1 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 Ex.D1/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. Therefore, according to the learned counsel for the petitioner, both the Trial Court as well as the First Appellate Court committed a grave error in considering the evidence in a perverse manner and therefore, this Court should interfere in exercise of revisional jurisdiction. He would further submit that the Lower Appellate Court, as a matter of fact, has not independently considered and applied its mind to the evidence relied and as in one sentence confirmed the Trial Court Judgment and therefore, the same is bad in law.

While casting doubts on charges made, the Bench then holds in para 13 that:
I have considered the material evidence on records and the submissions of the learned counsel on either side. As far as the first set of allegations of physical torture and mental cruelty during the period 2000 -2005 is concerned when the petitioner herself has caused Ex.D1/legal notice, wherein it is specifically avered that PW-1 and the petitioner/accused were living happily during 2000-2005. Ex-D1, is caused by the PW-1 and therefore, once she admits in the cross-examination that the notice is given on her instructions and the same being marked, it throws doubt on the allegations leveled.

Quite candidly, the Bench then concedes in para 14 that:
Secondly, I am also in agreement with the learned counsel for the petitioner that as far as the alleged incident occurred on 16.05.2012 is concerned PW.1 has categorically admitted in her cross-examination that the incident did not happen.

It is worth noting that the Bench then forthrightly observed in para 15 that, Be that as it may, PW-1, 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. In this regard, the evidence cannot be looked into in piecemeal. This Court has to read the evidence of PW.1, PW.7 & PW.8 as a whole and a proper reading would convey the essence that cruelty, predominantly mental cruelty, was unleashed on PW.1, on account of the extramarital affairs developed by the petitioner herein. To this, the learned counsel would rely on paragraph No.15 of the Judgment of the Hon'ble Supreme Court in K.V.Prakash Babu case mentioned supra. Which is extracted hereunder:

15.The concept of mental cruelty depends upon the milieu and the strata from which the persons come from and definitely has an individualistic perception regard being had to one's endurance and sensitivity. It is difficult to generalise but certainly, it can be appreciated in a set of established facts. Extra marital relationship, per se, or as such would not come within the ambit of Section 498(A) of IPC. It would constitute a criminal offence. There is no denial of the fact that the cruelty need not be physical but a mental torture or abnormal behaviour that amounts to cruelty or harassment in a given case. It will depend upon the facts of the said case. To explicate, solely because the husband is involved in an extra-marital relationship and there is some suspicion in the mind of wife, that cannot be regarded as mental cruelty which would attract mental cruelty for satisfying the ingredients of Section 306 of IPC.

But the perusal of the above dictum would itself make it clear that the Court has to take into consideration the said abnormal behaviour with the facts and circumstances of the case and it has to be decided whether the conduct amounted to cruelty. Therefore, looking at the evidence of PW.1, PW.7 & PW.8, which is on record, it is clear that there was extramarital relationship. It has caused such an effect on the mental health of PW.1, which resulted in serious domestic discord and her leaving the matrimonial home. As a matter of fact, as per the evidence on record, PW.1 went out of the matrimonial home on 16.11.2005.

Quite glaringly, the Bench then states in para 16 that:
During the course of the hearing of the learned Government Advocate (crl.side) appearing for the first respondent, also produced the Birth certificate, evidencing the birth of a child for the petitioner/accused and the said A6/ Datchayani, which was born on 17.09.2006 itself. Therefore, the Court cannot close its eyes to the hard evidence and the facts of this case. It is pertinent to point out even the Appellate Court has taken an exception to the prosecution in non-filing of Cross Appeal as against the acquittal of A2 to A6, in this case.

Most significantly, what attracts maximum eyeballs is then elaborated upon in para 17 that:
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 PW.1, leading to serious circumstances, in conjunction with the act of PW.1 being forced to leave the matrimonial home, would amount to cruelty to her within Section 498(A) of IPC.

It cannot be glossed over that the Bench then also makes it clear in para 18 that:
During his arguments, the Learned Counsel replied by pointing out that PW.1 was also in an extramarital relationship with one Ramu and that they have cross-examined her. Except throwing allegations on PW.1 in the cross-examination, the defence has not done anything towards the proof of allegations and under the said circumstances, I reject the said submission without merits.

As a corollary, the Bench then holds in para 19 that:
In view of my aforesaid findings, there is no any illegality or any error in the conclusion of the Trial Court and the Lower Appellate Court that the petitioner is guilty of the offence under Section 498(A) of IPC.

As we see, the Bench then holds in para 20 that:
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.

Finally, the Bench holds in para 21 that:
The Criminal Revision Case is accordingly partly allowed.

In sum, this is definitely a very good judgment by Madras High Court which displays zero tolerance for cruelty towards wife by husband. It also makes amply clear that a husband would be definitely liable for punishment of jail term if he undergoes extra-marital relationship with some other women. Very rightly so! No denying it!

Sanjeev Sirohi, Advocate,
s/o Col BPS Sirohi, A 82, Defence Enclave,
Sardhana Road, Kankerkhera, Meerut – 250001, Uttar Pradesh