In a latest judgement, the Supreme Court has held Extramarital relationship of the husband with his female colleague will not constitute an offence of ‘cruelty’ under the Indian Penal Code, if the wife commits suicide fearing alienation from husband.

Acquitting the husband of ‘cruelty’ and ‘abatement to suicide’ charges, a Bench of Justices K.S. Radhakrishnan and A.K. Sikri said to constitute an offence under Section 306 of the IPC, the prosecution had to establish beyond reasonable doubt that a person had committed suicide and the suicide was abetted by the accused.

Writing the judgment, Justice Radhakrishnan said: “The mere fact that the husband has developed some intimacy with another, during the subsistence of marriage and failed to discharge his marital obligations, as such would not amount to ‘cruelty’, but it must be of such a nature as is likely to drive the spouse to commit suicide to fall within the explanation to Section 498A IPC. Harassment, of course, need not be in the form of physical assault and even mental harassment also would come within the purview of Section 498A. Mental cruelty, of course, varies from person to person, depending upon the intensity and the degree of endurance, some may meet with courage and some others suffer in silence, to some it may be unbearable and a weak person may think of ending one’s life. We, on facts, found that the alleged extramarital relationship was not of such a nature as to drive the wife to commit suicide or that A-1 [husband] ever intended or acted in such a manner which under normal circumstances, would drive the wife to commit suicide.”

We notice, in this country, if the marital relationship is strained and if the wife lives separately due to valid reasons, the wife can lay a claim only for maintenance and if a third party is instrumental for disrupting her marriage, by alienating her spouse’s affection, for a successful prosecution of such an action for alienation of affection, the loss of marital relationship, companionship, assistance, loss of consortium, etc. as such may not be sufficient, but there must be clear evidence to show active participation, initiation or encouragement on the part of a third party that he/she must have played a substantial part in inducing or causing one spouse’s loss of other spouse’s affection. Mere acts, association, liking as such do not become tortuous. A person is not liable for alienation of affection for merely becoming a passive object of affection.


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