IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.12490 of 2007 KAPIL MUNI TIWARI & ANR Versus STATE OF BIHAR & ANR ----------- 5 8.9.2008 Heard learned counsel for the petitioners and learned A.P.P. for the State. Although notice was issued to the complainant - O.P. No. 2 and the same was validly served she has chosen not to appear to contest this application. The two petitioners who along with others have been made to figure as accused in Complaint Case No. 544 of 2006 are aggrieved by order dated 13.1.2007 passed therein by learned Sub-Divisional Judicial Magistrate, Sasaram, whereby he has taken cognizance of Section 498A I.P.C. and Section 4 Dowry Prohibition Act against the petitioners and others. According to the complainant at the time of her marriage with Radhe Shyam Tiwari gifts and costly items were presented which were commensurate with the earning capacity of her father and on the entry into the matrimonial home the initial period was spent in bliss and cordiality and out of the wedlock a daughter, Laxmi, was born. It appears that the birth of the daughter was the bane for the complainant since it was only thereafter that the accused persons started torturing her for not giving birth to a son. It is said that the father of the complainant gave some money for treatment on the presumption that the same would be of some help in her giving birth to a son and small gifts of money were made from time to time for - 2 - the maintenance of the complainant and her minor daughter. In the year 2002 the complainant again give birth to another daughter and this time she was compelled to do domestic work in the family of the agnates. Section 498A I.P.C. reads as follows:- 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 laible to fine. Explanation. – For the purpose of this section. “cruelty” means- (a) any willful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman; or (b) harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand. From the definition of the Section it would appear that following ingredients are necessary, namely, that the complainant should be subjected to cruelty by either the husband or a relative of such husband and cruelty would arise from such conduct of those persons as would be likely to drive the woman to commit suicide or to cause grave injury or danger to the life limb or health and secondly that such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or - 3 - valuable security. From the recital in the complaint petition there does not appear any iota of allegations of any of the accused persons having demanded any property or valuable security and of the complainant being assaulted for the non fulfillment thereof. The allegation is of the complainant being tortured for having given birth to two daughters successively. This cannot be termed to be an offence under section 498A I.P.C. and Section 4 of Dowry Prohibition Act. For the reasons stated above the impugned order so far as the petitioners are concerned is hereby quashed and the application is allowed. Spd/- (Abhijit Sinha, J.)