Secret Phone Sex With Husband’s Friend Cannot Be Ground For Abetment To Suicide Charge: Bombay HC [Read Judgment]

The Bombay High Court, on Friday, discharged a woman from a case registered against her for abetment of her husband’s suicide by indulging in phone sex with his friend.

Justice Mridula Bhatkar emphasised on the fact that such an act would constitute mens rea under Section 107 of the Indian Penal Code only when it was done with a planned intention of harassing the husband, by repeatedly informing him about the phone sex.

The court then observed, “Thus, when one partner does such activity clandestinely, then it pre-supposes guilty mind. However, such an act or guilty mind cannot be substituted for mens rea which is the requirement for abetment under section 107 of the Indian Penal Code. The intention of the partner who is engaged into such phone sex or causing ill-treatment should be, that the other spouse should finish his or her life.”

It further explained, “For example, if at all, the applicant/accused would have indulged into phone sex deliberately disclosing this repeatedly to the deceased albeit warning given by the deceased of discontinuing such activity, it would have been considered a planned harassment to the deceased and therefore, such repeated, deliberate sexual SMSs would have manifested the intention to drive the victim to the decision of committing suicide. The guilty mind is to be necessarily linked with infidelity but not abetment to commit suicide.”

The court was hearing a revision application filed by the wife, one Anagha Hitesh Arya, who had challenged the rejection of her discharge application in the case. She had been accused of abetting her husband’s suicide and had been charged under Section 306 of the Indian Penal Code.

The couple tied the knot in December 2002 and have a 13-year- old son. As per the order, the marriage was not a happy one as both suspected each other's fidelity. The FIR filed by the husband’s father now claimed that the man underwent mental trauma after stumbling upon the lewd messages and this had driven him to end his life by setting himself on fire.

The wife had essentially asserted that she cannot be charged with the crime because the act was done in secret and hence, mens rea was absent in the case at hand.

Accepting this contention, the court noted that while there is evidence of harassment and nagging, it cannot be said that this was an abetment to commit suicide. It observed, “The life is never throughout a bed of roses but there are difficulties, fights, failures what is called as wear and tear of life. Every individual reacts differently to the situation depending on his or her mindset. Some persons are strong and some are weak. Thus, the impact of reaction to a particular incident is always different from person to person and, therefore, the law-makers of Indian Penal Code who drafted section 306 have linked it with section 107 by using the word “abetment”.”

It then clarified that “though the applicant/accused can be said to be responsible for the trauma caused to the deceased, she is not an abettor for the act of suicide.”

The court, therefore, opined that there was no material to frame charges against the accused under Section 306 of the Indian Penal Code. The impugned order was hence, set aside.

Read the Judgment Here