Husband Sending Draft Divorce Agreement To Wife Would Not Constitute Abetment Of Suicide: Kerala High Court

The Kerala High Court recently set aside an order of the trial court which had added the charge of abetment of suicide against man whose wife is stated to have committed suicide by allegedly jumping into a well days after a draft divorce agreement was given to her.

The prosecution witnesses–the deceased's mother, brother and father had stated that the husband's family came to the deceased's house, handed over a draft divorce agreement to the deceased's brother who gave it to the deceased. It was deposed that after reading the same the deceased became upset and committed suicide three days thereafter.

Justice Kauser Edappagath in its order noted:

"In paragraph 5 of Annexure A1 complaint, the allegation is that accused Nos. 2 to 4 came to the house of the deceased on 02.11.2005 and handed over a draft of an agreement for divorce and seeing this, the deceased was mentally shattered. The trial court found in the impugned order that the averments in paragraph 5 of Annexure A1 and the evidence let in by PWs 1 to 3 mentioned above are sufficient to show that there was abetment of committing suicide by the petitioner. I cannot subscribe to the said finding". 

Referring to the ingredients of Section 306 the court said that there is nothing in the allegations to show that there was any instigation or intentional aiding or direct or indirect act of incitement to the commission of the offence of suicide by the petitioner.

"Thus, the law is clear that to constitute an offence of abetment of suicide under Section 306 IPC (Section 108 of BNS), there must be proof of either instigation or conspiracy or intentionally aiding or direct or indirect act of incitement to the commission of the offence of suicide. A mere allegation of humiliation, harassment or threat unaccompanied by any incitement or instigation is not at all sufficient to attract the offence.There is no averment in Annexure A1 complaint or in the evidence of PWs 1 to 3 (family of deceased) that by handing over the Annexure A2 draft agreement for divorce, there was any instigation or intentional aiding or direct or indirect act of incitement to the commission of the offence of suicide by the petitioner," the court said. 

The court said that what was deposed by deceased's family is that by reading draft divorce agreement, the deceased was "mentally shattered, and she committed suicide three days thereafter".

It observed that the family did not state that the petitioner husband played "any active role in either instigating or intentionally aiding the commission of suicide".

It further observed that the prosecution has no case that the husband through the co-accused had handed over the draft agreement with the intention to drive the deceased to commit suicide.

"The alteration or addition of a charge must be for an offence that is made out by the evidence recorded during the trial before the Court. Though the power under S.216 Cr.P.C to alter or add to the existing charge is very wide, to exercise the said power, there must be some material existing before the Court which has some connection or link with the charges sought to be added," the court added. 

Earlier the police had after the investigation, filed a final report before the trial court against the husband alone, alleging an offence under Section 498A IPC (cruelty). The allegation in the final report was that the petitioner husband had subjected the deceased to cruelty–physically and mentally, and due to such cruelty, she committed suicide.

Subsequently the additional public prosecutor filed a plea before trial court seeking that Section 306 IPC (abetment to suicide) be also added.The trial court, after hearing both sides, found that the materials on record would show that Section 306 of IPC (abetment to suicide) was also involved, and accordingly, added the section. Against this the husband moved the high court.

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