A husband’s silence for 13 days before his wife’s suicide cannot, by itself, land him in jail for cruelty, the Supreme Court has held while acquitting a man convicted under Section 498A of the IPC (Sec 85 BNS).

The appeal was filed by Jayesh Kanna against a January 9, 2023 judgment of the Madras High Court affirming his conviction under Section 498A IPC and sentence of three years’ imprisonment.

According to the prosecution, Sangeetha died by suicide on January 31, 2015, between 5 pm and 6.45 pm while staying at her parental home.

Court noted that the appellant was employed as an engineer in Muscat, Oman. After marriage, the deceased initially lived with him and his family. She later shifted to her parental home, where she remained till her death.

The prosecution alleged that after the deceased moved to her parental home, the appellant was upset because she had gone there without consulting her in-laws.

It was claimed that he reprimanded her for doing so and thereafter stopped communicating with her over the phone.

According to the prosecution, this alleged non-communication caused immense mental agony to the deceased and eventually led her to take the extreme step.

The trial court found insufficient evidence against the appellant’s parents and brothers and acquitted them of all charges.

The husband was also acquitted of the dowry death charge under Section 304B, IPC. However, the trial court convicted him under Section 498A, IPC on the allegation that he had stopped speaking to the deceased.
The high court also upheld this decision.

Before the Supreme Court, the appellant argued that the allegations themselves did not make out an offence under Section 498A IPC. His counsel pointed out that the marriage took place on November 2, 2014 and that the appellant left for Muscat on November 29, 2014.

The deceased stayed with her in-laws for about one and a half months before moving to her parental home on January 18, 2015. Court noted that the deceased could not travel to Muscat with the appellant because formalities relating to her passport had not been completed and a visa could not be issued.

Court noted that the deceased could not travel to Muscat with the appellant because formalities relating to her passport had not been completed and a visa could not be issued.

Court found that no allegation of harassment or cruelty had been proved during the period the couple lived together after marriage and before the appellant left India.

The State argued that the appellant’s refusal to communicate with his wife amounted to mental cruelty and was serious enough to drive her to suicide. The Supreme Court, however, found that this allegation had not been backed by reliable evidence.

The Bench observed that once the prosecution’s case rested primarily on alleged non-communication, it was duty-bound to prove that allegation through objective evidence such as call detail records.

In his defence, the appellant claimed that he had attempted to speak to the deceased but could not do so because her mobile phone was not functioning properly.
He stated that he had therefore contacted her father instead.
Court noted that the prosecution had failed to rebut this defence with any documentary evidence.
“In such circumstances, merely oral testimony to say that because of non-communication on the part of the appellant, the deceased was compelled to commit suicide was not sufficient to bring the charge within the purview of cruelty,” the Bench observed.
The prosecution relied on WhatsApp chats to show that the appellant had not sent messages to the deceased.
The Supreme Court said this evidence was inadequate.

“The prosecution placed reliance upon WhatsApp chats showing that no messages were sent by the appellant to the deceased in order to prove that there was no conversation. However, in our opinion, not sending messages over WhatsApp is also not sufficient since the conversation may have been made through normal phone call also,” the Bench said.
Court stressed that call records could have provided much stronger evidence, but no such material was produced.

Supreme Court held that mere non-communication for thirteen days, even if assumed to be true, could not by itself constitute cruelty in the facts of the present case.
The Bench reiterated that to establish cruelty, the conduct must be of such a grave and compelling nature that it is capable of driving a woman to commit suicide.
“Therefore, in absence of any material, mere non-communication with the deceased for thirteen days, without substantiating the same with cogent evidence, cannot, in any stretch of the imagination, fall within the ambit of cruelty in the facts of this case,” Court said.

However, Setting aside the conviction of a husband whose wife died by suicide while staying at her parental home, Supreme Court ruled that the prosecution had failed to prove that his alleged refusal to speak to her over the phone constituted cruelty within the meaning of Section 498A of the IPC.

Case Title: Jayesh Kanna Vs The Assistant Commissioner, Law and Order, (West) Etc

Bench: Justices J K Maheshwari and Atul S Chandurkar