Bigamy or Concubine will not come under 498A IPC

IN THE HIGH COURT OF JUDICATURE AT PATNA

Criminal Miscellaneous No.17039 of 2011

1. Asha Devi W/o Suresh Singh, Resident Of Muhalla, Katharibagh, P.S- Chapra(T) , Distt- Saran At Chapra.
2. Suresh Singh S/O Late Harinandan Singh, Resident Of Muhalla, Katharibagh, P.S- Chapra(T) , Distt- Saran At Chapra.
3. Pratibha Kumari D/O Suresh Singh, Resident Of Muhalla, Katharibagh, P.S- Chapra(T), Distt- Saran At Chapra….. …. Petitioner/s

Versus

1. The State Of Bihar
2. Priyanka Soni D/O Shiv Chandra Prasad Singh, R/O Mohalla-Shakti Nagar, P.S- Chapra(M) Distt- Saran At Chapra. …. …. Opposite Party/s

Appearance :
For the Petitioner/s : Mr.Jitendra Singh, Sr. Adv. Mr. Rakesh Singh, Adv.
For the Opposite Party/s : Mr. Kamaluddin, Adv.

CORAM: HONOURABLE MR. JUSTICE SHIVAJI PANDEY ORAL ORDER

C.A.V

Heard learned counsel for the petitioners, for the State and for the O.P. No. 2.
2. In this case, petitioners are challenging the order dated 18th April 2011 passed in T.R. No. 188 of 2011 by Sub-Divisional Judicial Magistrate, Chapra whereby and whereunder the petition filed on behalf of petitioners under Section 239 of the Code of Criminal Procedure has been dismissed and the case has been fixed for framing of charge.

3. It appears from the record that a Complaint petition, vide Complaint Case no. 3338 of 2008 was filed by one Priyanka Soni. The Chief Judicial Magistrate under Section 156(3) of the Code of Criminal Procedure (hereinafter, in short, referred to as the ,Code?) sent the matter for investigation to the Police and later on the case was instituted as Chapra Mufassil P.S.Case no. 154 of 2008. In the complaint petition, the complainant has stated, Sri Rakesh Kumar Singh, Manoranjan Prasad Singh, Indu Singh and Upendra Singh are accused persons claiming that Rakesh Kumar Singh is her husband, Manoranjan Prasad Singh is her father in-law, Indu Singh is her mother in-law. In the complaint petition it has been alleged that on 9th July 2008 the complainant had married with Rakesh Kumar Singh according to Hindu rites and rituals. It has been stated that her father had given Rs.2,00,000/- (Rupees two lacs), ornament, clothes and articles. It has been alleged that the complainant at the time of Ruksadi, demanded Rs.2,00,000/- (Rupees two lacs) and one Maruti car within one month, otherwise it may lead to bad consequence. The complainant went to her in-laws? place (Sasural) at Shakti Nagar where Rakesh Kumar Singh and the complainant lived as husband and wife. The marriage could not move smoothly as they were exerting pressure for money and Maruti car. When her father could know about the behaviour of husband and in-laws, he went and tried to assuage that they should not behave in such a way with his daughter but Rakesh Kumar Singh and Indu Singh caught hold her hair and all the four accused persons assaulted and asked her father to take away his daughter otherwise her dead body would go from the in-laws? place. It has been stated that on 10th October 2008 the accused persons forcefully expelled the complainant from the house and when she resisted, they tried to kill the prosecutrix. On the next day, her father went to her in-laws? place to settle the dispute but the accused persons did not mollify the demand for money.

4. It appears that at three stages, charge sheets have been submitted by Police. At the first instance, the Police submitted charge sheet No. 45 of 2009 dated 17th April 2009 (Annexure-4) for the offences under Sections 498A, 379, 376 and 494 of the Indian Penal Code against Rakesh Kr. Singh, Manoranjan Pd. Singh and Indu Singh. It also appears that there was a 107 Cr.P.C. proceeding in between the parents of the prosecutrix as well as the accused persons. The learned court below vide order dated 26th May 2009 took cognizance under Sections 498A, 379, 376 and 494/34 of the Indian Penal Code and Sections 3 /4 of the Dowry Prohibition Act.

5. It appears that a discharge application dated 17th August 2009 was filed making a prayer that no case is made out under Section 376 of the Indian Penal Code. The learned Additional Sessions Judge-IX, Saran at Chapra, vide order dated 21st October 2009 rejected the application which was challenged before this Court in Cr.Misc. No. 39879 of 2009 and this Court vide order dated 19th February 2010 (Annexure- 7) has held that no case is made out under Section 376 of the Indian Penal Code. Thereafter 1st supplementary charge sheet No. 211 of 2009 was filed against Upendra Singh and Birendra Singh. They were made accused in the case. Upendra Singh and Birendra Singh had challenged the order of cognizance before this Court, vide Cr. Misc. No. 8422 of 2010 and this Court quashed the cognizance taken against Sri Birendra Singh, but allowed the case to continue against Upendra Singh. A 2 nd supplementary charge sheet was filed against Suresh Singh, Asha Devi and Pratibha Devi (Petitioners of this case) claiming that Suresh Singh knowing full well of the 1st marriage, got Pratibha married with Rakesh Kumar Singh and the court took cognizance against them on 4th September 2010/24th September 2010 for the offence under Sections 498A, 379, 376 and 494 of the Indian Penal Code but it appears from the record that the learned Sub-divisional Judicial Magistrate, vide order dated 15th January 2011 expunged Section 376 of the Indian Penal Code.

6. The petitioners of the present case are none other than it has been claimed that Pratibha Kumari, petitioner no.3 is daughter of Suresh Singh and 2nd wife of Rakesh Singh. Similarly, Asha Devi and Suresh Singh are new mother in-law and father in-law respectively.

7. An application was filed to discharge the petitioners from the present case, as no offence and materials are available against them for continuation of the trial. The court below considered the case of petitioners and vide the impugned order dated 18th April 2011 rejected the discharge petition which is under challenge before this Court.

8. Learned counsel for the petitioners has made the following submissions:
a) It has been submitted that the 2nd wife will not be deemed to be relative as provided under Section 498A of the Indian Penal Code, as the 2nd marriage is void marriage. The status of 2nd wife arising from void marriage will be at par with paramour or concubine.
b) It has been further submitted that last date of occurrence that had taken place against the prosecutrix is on 10th October 2009 and the 2nd marriage was performed on February 2009 and, as such, there was no occasion for committing any cruelty against the prosecutrix. It is an admitted fact that from 10th October 2008 the complainant prosecutrix was neither living with the husband nor she was living in in-laws? place. So the question of any threat, cruelty or otherwise cannot be attached to the petitioners.
c) It has further been submitted that from the case diary the Police has not collected or recorded any evidence against the petitioners to show the involvement of the petitioners which may constitute an offence under the aforesaid Sections of the Indian Penal Code or the Dowry Prohibition Act, so much so that the court below, while disposing of the discharge petition has not recorded any finding of suspicion, so much so strong suspicion.

READ  498a, Extra marital affair

9. In support of aforesaid submissions, learned counsel for the petitioners has relied on the judgments reported in (2005)3 SCC 507 (Ramesh v. State of T.N.),(2009)10 SCC 184 (Neelu Chopra v. Bharti), (2010)11 SCC 618 Vijeta Gajra v. State ( NCT of Delhi) (2010)7 SCC 667 (Para-28,32,38) (Preeti Gupta v. State of Jharkhand) AIR 1979 SC 336 (Para- 10) (Union of India v. Prafulla Kumar) and (2008)14 SCC 1 (Rukmini Narvekar v. Vijaya Satardekar) (Para-34).

10. Learned counsel for the O.P.No.2 controverted the argument and submitted that the court below has rightly rejected the discharge petition and has relied on the judgment reported in (1992)3 SCC 317 (Chand Dhawan v. Jawahar Lal).

11. The counsel for the petitioner has contended that the court below has not exercised the power properly as envisaged under Section 239 of the Code and has relied on the judgments reported in the case of Union of India v. Prafulla Kumar (supra). Para 10 of the judgment is as follows: “Para-10. Thus, on a consideration of the authorities mentioned above, the following principles emerge: (1) That the Judge while considering the question of framing the charges under Section 227 of the Code has the undoubted power to sift and weigh the evidence for the limited purpose of finding out whether or not a prima facie case against the accused has been made out;ÿ(2) Where the materials placed before the Court disclose grave suspicion against the accused which has not been properly explained the Court will be fully justified in framing a charge and proceeding with the trial.ÿ(3) The test to determine a prima facie case would naturally depend upon the facts of each case and it is difficult to lay down a rule of universal application. By and large however if two views are equally possible and the Judge is satisfied that the evidence produced before him while giving rise to some suspicion but not grave suspicion against the accused, he will be fully within his right to discharge the accused.ÿ(4) That in exercising his jurisdiction under Section 227 of the Code the Judge which under the present Code is a senior and experienced Court cannot act merely as a Post-Office or a mouth- piece of the prosecution, but has to consider the broad probabilities of the case, the total effect of the evidence and the documents produced before the Court, any basic infirmities appearing in the case and so on. This however does not mean that the Judge should make a roving enquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a trial.”

12. Another judgment that has been relied on is Rukmini Narvekar v. Vijaya Satardekar (supra) where the Court has said that while exercising the power under Sections 227 and 228 of the Code, normally the Court will examine the documents of prosecution and not of defence, but in a rare circumstance, the Court may look into an impeachable material of the defence.

13. Now let us examine the submission of the parties. It will be apt to examine Section 498A of the Indian Penal Code where the moot question will arise as to what will be the definition of relative and the meaning of cruelty. Section 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 liable to fine.

Explanation. – For the purpose of this section,
“cruelty” means –
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 on any person related to her, to meet such demand.”

14. In order to understand the scope of Section 498A, the meaning of ,relative? and cruelty plays important role. It will be proper to consider the judgment reported in (2009)6 SCC 757 (U.Suvetha v. State) where the Court was considering the meaning of ,husband, relative and cruelty?. It was a case where after the marriage, the husband had developed his relationship with another lady where the Court has considered the status of a paramour and concubine and held that a paramour or concubine will not come within the parameter of relative mentioned in Section 498A of the Indian Penal Code. The Court has mentioned the ingredients of Section 498A which are as follows:
a) A woman must be married;
b) She must he subjected to cruelty or harassment; and c) Such cruelty or harassment must have been shown either by husband of the woman or by relative of her husband.

15. The Court has examined the meaning of relative as has not been defined in the Code but has stated that the relative must be assigned a meaning as is commonly understood. Ordinarily it would include, father, mother, husband or wife, son, daughter, brother, sister nephew or niece, grand son or grand daughter of any individual or the spouse of any person. The meaning of the word ,relative? will depend upon the nature of statute. It principally includes a person related by blood, marriage or adoption.

16. The Hon?ble Supreme Court has quoted the definition from different dictionaries and has held that the paramour and concubine is not a relative but while deciding the case, the Court has approved the view of Kerala High Court in reported in 2005 MLJ (Crl.) 841 (Ker) John Idiculla v. State of Kerala) are as follows:-
Para-25 : The test under Section 498-A IPC is whether in the facts of each case, it is probable that a woman is treated by friends, relatives, husband or society as a ,wife? or as a mere ,mistress?. If from the pleadings and evidence the Court finds that the woman concerned is regarded as wife and not as a mere mistress, she can be considered to be a ,wife? and consequently as ,the relative of the husband? for the purpose of Section 498-A IPC. Proof of a legal marriage in the rigid sense as required under civil law is unnecessary for establishing an offence under Section 498-A IPC. The expression ,marriage? or ,relative? can be given only a diluted meaning which a common man or society may attribute to those concepts in the common parlance, for the purpose of Section 498-A IPC. A second wife who is treated as wife by the husband, relatives, friends or society can be considered to be ,the relative of the husband? for the purpose of Section 498-A IPC. If she inflicts cruelty on the legally wedded wife of the husband, an offence under Section 498- A IPC will not lie against her.”ÿ17. From the view of the Kerala High Court, the relationship of a man with a woman in a case of mistress, she cannot get the status of wife but when a lady enters into 2 nd marriage and the lady is treated as a wife by the husband, relative, friends or society will be construed as a relative of husband for the purpose of Section 498A of the Indian Penal Code. The 2nd marriage with another woman may be treated as void for the purpose of Hindu Succession Act or for Hindu Marriage Act, but for the purpose of section 498A, if the 2 nd marriage with another woman be treated as void marriage, in that situation, Section 494 of the Indian penal Code will be difficult to be applied because Section 494 presupposes a 2 nd marriage and, as such if the society and relative arising from the 2nd marriage, the woman is recognized as wife, then it is very difficult to brush aside that the 2nd wife will not be relative for the purpose of section 498A of the Indian Penal Code.ÿ18. In this connection, it will be relevant to rely on the judgment reported in (2004)3 SCC 199 (Reema Aggarwal v. Anupam) where a similar type of situation had cropped up and the Hon?ble Supreme Court has considered the situation of 2 nd marriage and the Court held that a person who enters into a marital arrangement be allowed to take shelter behind a smokescreen to contend that since there was no valid marriage, the question of dowry does not arise. Such legalistic niceties would destroy the purpose of the provisions. Such hair splitting legalistic approach would encourage harassment to a woman over demand of money. The nomenclature ,dowry? does not have any magic charm written over it. It is just a label given to demand of money in relation to marital relationship. The legislative intent is clear from the fact that it is not only the husband but also his relations are covered by Section 498-A.”

READ  498A,Desertion still not Cruelty on men

19. The Court has held that if the extracted meaning is given, it would not advance the legislative intent. On the contrary, it would be against the concern shown by the legislature for avoiding harassment to a woman over the demand of money in relation to marriages otherwise it would amount to perpetuate the agony of victim lady for the greed of money. If the status of 2nd marriage would be treated to be invalid marriage, then in the circumstance, it would be a premium to a husband to get a 2nd marriage and take advantage of void marriage and to perpetuate cruelty, coercion as has been enumerated in Section 304-B and 498-A of the Indian Penal Code.

20. In this connection, it will be relevant to quote Para 18 of the judgment which is as follows : Para-18: The concept of ,dowry? is intermittently linked with a marriage and the provisions of the Dowry Act apply in relation to marriages. If the legality of the marriage itself is an issue, further legalistic problems do arise. If the validity of the marriage itself is under legal scrutiny the demand of dowry in respect of an invalid marriage would be legally not recognizable. Even then the purpose for which Sections 498-A and 304-B and Section 113-B of the Indian Evidence Act, 1872 (for short ,the Evidence Act?) were introduced cannot be lost sight of. Legislation enacted with some polity to curb and alleviate some public evil rampant in society and effectuate a definite public purpose or benefit positively requires to be interpreted with a certain element of realism too and not merely pedantically or hyper technically. The obvious objective was to prevent harassment to a woman who enters into a marital relationship with a person and later on becomes a victim of the greed of money. Can a person who enters into a marital arrangement be allowed to take shelter behind a smokescreen to contend that since there was no valid marriage, the question of dowry does not arise ? Such legalistic niceties would destroy the purpose of the provisions. Such hairsplitting legalistic approach would encourage harassment to a woman over demand of money. The nomenclature ,dowry? does not have an magic charm written over it. It is just a label given to demand of money in relation to marital relationship. “The legislative intent is clear from the fact that it is not only the husband but also his relations who are covered by Section 498-A. The legislature has taken care of children born from invalid marriages. Section 16 of the Marriage Act deals with legitimacy of children of void and voidable marriages. Can it be said that the legislature which was conscious of the social stigma attached to children of void and voidable marriages closed its eyes to the plight of a woman who unknowingly or unconscious of the legal consequences entered into the marital relationship? If such restricted meaning is given, it would not further the legislative intend. On the contrary it would be against the concern shown by the legislature for avoiding harassment to a woman over demand of money in relation to marriages. The first exception to Section 494 has also some relevance. According to it, the offence of bigamy will not apply to “any person whose marriage with such husband or wife has been declared void by a court of competent jurisdiction”. It would be appropriate to construe the expression “husband” to cover a person who enters into marital relationship and under the colour of such proclaimed or feigned status of husband subjects the woman concern to cruelty or coerces her in any manner or for any of the purposes enumerated in the relevant provisions – Sections 304-B/498-A, whatever be the legitimacy of the marriage itself for the limited purpose of Sections 498-A and 304- B IPC. Such an interpretation known and recognized as purposive construction has to come into play in a case of this nature. The absence of a definition of “husband” to specifically include such persons who contract marriages ostensibly and cohibit with such woman, in the purported exercise of their role and status as “husband” is no ground to exclude them from the purview of Section 304-B or 498-A IPC, viewed in the contest of the very object and aim of the legislations introducing those provisions.”

21. The Hon?ble Supreme Court has taken a view that the Court should liberally consider the word or expression relating to the person committing the offence so as to rope in not only those persons of faulty marriages but also any one who has undergone some or other forms of marriage and thereby assumed for himself the position of husband.

22. On the analysis of the aforesaid judgment, it is completely clear that it cannot be brushed aside the status of a woman arising from 2nd marriage as a wife when the husband, relative or society considered and recognized the 2nd wife as a wife. If that be the situation it cannot be said that the 2nd wives are excluded from the purview of Section 498A of the Indian Penal Code. So the proposition advanced by the petitioners that
the petitioner no.3 who has entered into a marriage with Rakesh Kumar Singh and petitioner Nos. 2 and 3 cannot be treated as a relative for the purpose of Section 498A of the Indian Penal Code of Rakesh Kumar Singh is not acceptable and, as such, this argument of the petitioners is rejected.

23. The scope and ambit of Court power under Section 482 of the Code are inherent power ex debito Justicia to do the real and substantial justice to parties for the administration criminal justice and to prevent the abuse of process of the court. In that connection, it will be relevant to rely on the judgment of the Hon?ble Supreme Court reported in the case of Preeti Gupta (supra) where the Court has considered the scope of Section 482 of the Code in connection with Section 498A of the Indian Penal Code. The Court has held that the High Court should normally refrain from giving prima facie decision in a case where all the facts are completely hazy, more so when the evidences have not been collected and produced before the Court and the issue involved whether factual or legal are of such magnitude that they cannot be seen in their true perspective without sufficient material. Of course no hard and fast rule can be laid down in regard to a case in which High Court can exercise inherent power in quashing the proceeding
at any stage. The Court has considered the earlier judgment of the Hon?ble Supreme Court and was of the view that the power under Section 482 of the Code is to secure justice and to prevent the abuse of process of court. In this case, the Court has taken note of prevalent situation in connection with Section 498A where it has been recorded that in complaint petition even a remote relatives are made accused with intention to humiliate them and the Court in the case of Preeti Gupta (supra) has recorded in the following terms:

READ  Acquitted in IPC 498A ,302 IPC and Section 374(2) Cr.P.C

Para: 37. Before parting with this case, we would like to observe that a serious relook of the entire provision is warranted by the legislature. It is also a matter of common knowledge that exaggerated versions of the incident are reflected in a large number of complaints. The tendency of over implication is also reflected in a very large number of cases. The criminal trials lead to immense sufferings for all concerned. Even ultimate acquittal in the trial may also not be able to wipe out the deep scars of suffering of ignominy. Unfortunately a large number of these complaints have not only flooded the courts but also have led to enormous social unrest affecting
peace, harmony and happiness of the society. It is high time that the legislature must take into consideration the pragmatic realities and make suitable changes in the existing law. It is imperative for the legislature to take into consideration the informed public opinion and the pragmatic realities in consideration and make necessary changes in the relevant provisions of law.”

24. The 2nd point for consideration is as to what are the materials available in the case diary against petitioners in connection with section 498A of Indian Penal Code. It is admitted fact that the last date of incident that had taken place with the prosecutrix is 10th October 2008 and the 2nd marriage was solemnized in February 2009. Admittedly there was no occasion for the petitioners either to commit cruelty and to assault the prosecutrix or any act connected with earlier marriage and, as such, the petitioners cannot be held responsible for the offence under Section 379 and 498A of the Indian Penal Code. In view of aforesaid discussion and finding, petitioners cannot be held liable for offence under Section 379 and 498A of I.P.C.

25. Now let us examine the applicability of Section 494 of the Indian Penal Code against the petitioners which is as follows: “Section 494. Marrying again during life-time of husband or wife.–Whoever, having a husband or wife living, marries in any case in which such marriage is void by reason of its taking place during the life of such husband or wife, shall be punished with imprisonment of either description for a term which may extend to seven years and shall also be liable to fine.”

26. As it appears from the different paragraphs of the case diary, i.e. Para-21, 71(statement of Suresh Singh, petitioner no.2), 109, 113, 116, 117, 118, 120 and 125 the marriage was solemnized between the petitioner no.3 and Rakesh Kumar Singh in a Hotel of Gorakhpur in the State of Uttar Pradesh, but there was a hazy situation in connection with facts as to whether the petitioner had prior knowledge about the first marriage or the present case was pending against Rakesh Kumar Singh and his family members but certainly there is nothing against Asha Kumari (Petitioner no.1) and, as such, it will be unnecessary for the lady to be harassed in the present case. In this view of the matter, in the opinion of this Court, there is no material against petitioner No.1 Asha Kumari to proceed with the case against her as earlier this court had quashed the cognizance under Section 376 of the Indian Penal Code. Accordingly the entire proceeding against petitioner No.1 Asha Kumari is quashed.

27. So far petitioner Nos. 2 and 3 are concerned, admittedly petitioner no.2 is father and petitioner no.3 is his wife. As per he case diary, the marriage was solemnized at Gorakhpur when they are resident of Chapra and, as such, it will be relevant to rely on the judgment reported in (Chand Dhawan v. Jawahar Lal (Supra) Accordingly, petitioner Nos. 2 and 3 will have to stand trial under Section 494 of the Indian Penal Code.

28. While the Court was in process to pass the order on 13th July 2012, the counsel for the petitioners made a submission that charge u/s 494 IPC has been framed only against the husband, namely, Rakesh Singh and no charge u/s 494 IPC has been framed against these petitioners.

29. The case was brought under the heading ,To be Mention? on 16th July 2012 in order to clarify the confusion created by the counsel for the petitioners by making such submission.

30. To-day counsel for the petitioners has drawn the attention of this Court towards Annexure-13 to I.A.No. 343 of 2012 and the Form of charge where charges framed against the accused have been mentioned. The order dated 13 th September 2011 which is the order passed by the Judicial Magistrate shows that attendance of all the accused persons has been filed, case was called out and the statement of accused persons was recorded and the charges have been framed under Sections 494A/34, 379/34, 494 IPC and 3 of the D.P.Act which were explained to all the accused persons. From this order it appears that the charges have been framed against these petitioners under Section 494 IPC also. The Form which has been annexed is not very clear to decipher the statements made therein. But the order as aforesaid is very clear and there is no confusion in this regard.

31. In this view of the matter, this Court is of the view that the charge u/s 494 IPC is also framed against these petitioners.

32. As this Court finds that there is no material against Asha Kumari, the entire proceeding is being quashed, so far it relates to her. With regard to other persons, Para-27 of this order is clear that they will have to stand the trial u/s 494 IPC.

33. Accordingly, this petition is allowed to the extent as indicated above.

Jay/- (Shivaji Pandey, J)

Leave a Comment

Your email address will not be published. Required fields are marked *