Extra-marital affair by itself not cruelty to wife within Section 498-A IPC [read order]


Extra-marital relationship, per se, or as such would not come within the ambit of Section 498-A IPC. It would be an illegal or immoral act, but other ingredients are to be brought home so that it would constitute a criminal offence. This is what was held by a Supreme Court bench of Justice Dipak Misra and Justice Amitava Roy in the case of K.V. Prakash Babu v. State of Karnataka [Criminal Appeal No(s). 1138-1139 OF 2016 (arising out of S.L.P. (Crl) Nos. 5928-5929 OF 2016); decided on 22 November 2016].

The basic facts of the case are that the marriage between the appellant (husband) and the deceased (wife) was solemenised on 12.10.1997. It was alleged that the appellant got involved with another woman in an extra-marital relationship. As per the prosecution, the deceased felt extremely hurt due to this adultery by her husband, and eventually being unable to withstand the conduct of extra-marital affair of the husband, she put an end to her life on 20th August, 2004. An FIR was lodged at the concerned police station by the father of the deceased, and after completing the investigation, charge sheet was under Sections 201, 302 and 498-A of the Indian Penal Code (IPC) and Section 3 of the Dowry Prohibition Act, 1961. He was acquitted for the offence under Section 302 IPC but convicted in respect of other two charges by the trial court. In appeal, his conviction under Section 3 of the Dowry Prohibition Act 1961 was annulled but now he was also found guilty of the offence under Section 306 IPC.

On appeal, the Supreme Court held as under:

“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 generalize 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 IPC. It would be an illegal or immoral act, but other ingredients are to be brought home so that 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 IPC.”

The Supreme Court further held that it is extremely difficult to hold that the prosecution has established the charge under Section 498A and the fact that the said cruelty induced the wife to commit suicide. It is manifest that the wife was guided by the rumour that aggravated her suspicion which has no boundary. The seed of suspicion planted in mind brought the eventual tragedy. But such an event will not constitute the offence or establish the guilt of the accused-appellant under Section 306 of the IPC.

The Supreme Court felt that the presumption engrafted under Section 113-A of the Evidence Act also may not help in the present case, i.e., the provision that enables the Court to draw presumption in a particular fact situation when necessary ingredients in order to attract the provision are established. In this regard, the court referred to certain observations from the case of Pinakin Mahipatray Rawal v. State of Gujarat, (2013) 10 SCC 48:

“Criminal law amendment and the rule of procedure was necessitated so as to meet the social challenge of saving the married woman from being ill-treated or forcing to commit suicide by the husband or his relatives, demanding dowry. Legislative mandate of the section is that when a woman commits suicide within seven years of her marriage and it is shown that her husband or any relative of her husband had subjected her to cruelty as per the terms defined in Section 498-A IPC, the court may presume having regard to all other circumstances of the case that such suicide has been abetted by the husband or such person. Though a presumption could be drawn, the burden of proof of showing that such an offence has been committed by the accused under Section 498-A IPC is on the prosecution.”

However, the Supreme Court clarified that if the husband gets involved in an extra-marital affair while that may not in all circumstances invite conviction under Section 306 of the IPC but definitely that can be a ground for divorce or other reliefs in a matrimonial dispute under other enactments.

Accordingly, the Supreme Court allowed the appeals and the conviction of the appellant under Sections 306 and 498-A of the IPC was set aside and he was set at liberty.

Read full order of the court:


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