Asha Devi & Ors vs State Of Bihar & Anr on 8 April, 2017

IN THE HIGH COURT OF JUDICATURE AT PATNA

Criminal Miscellaneous No.42633 of 2013
Arising Out of PS.Case No. -3331 Year- 2012 Thana -VAISALI COMPLAINT CASE District-
VAISHALI(HAJIPUR)

1. Asha Devi daughter of Ram Chandra Rai, resident of village- Sharariya, P.S-
Lalganj, District- Vaishali.

2. Ram Chandra Rai son of Late Yodha Rai, resident of village- Sharariya, P.S-
Lalganj, District- Vaishali.

3. Deepak Singh @ Deepak Kumar Yadav son of Asha Devi, resident of village-
Sharariya, P.S- Lalganj, District- Vaishali.

…. …. Petitioner/s
Versus

1. The State of Bihar

2. Jaleshwari Devi @ Dahali Devi wife of Chandeshwar Rai, resident of village-
Amritpur, P.S- Vaishali, District- Vaishali.

…. …. Opposite Party/s

Appearance :

For the Petitioner/s : Mr. Rajeev Ranjan, Advocate
For the Informant : Mr. Ranjan Kumar Dubey, Advocate
For the State : Mr. Narendra Kumar Singh, Advocate

CORAM: HONOURABLE MR. JUSTICE ASHWANI KUMAR SINGH
ORAL JUDGMENT
Date: 08-04-2017

This application under Section 482 of the Code of Criminal

Procedure (for short „the CrPC‟) has been filed for quashing of the

order dated 20.04.2013 passed by the learned Sub Divisional Judicial

Magistrate, Vaishali in Trial No.3194 of 2013 arising out of

Complaint Case No.3331 of 2012 by which finding a prima facie case

to be made out under Section 498A of the Indian Penal Code (for

short „the IPC‟) the petitioners along with one Chandeshwar Rai have

been summoned to face trial.

2. The complaint has been instituted with allegation that co-
Patna High Court Cr.Misc. No.42633 of 2013 dt.08-04-2017

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accused Chandeshwar Rai, the husband of the complainant had

developed extra marital relationship with the petitioner no.1 Asha

Devi, daughter of petitioner no.2 Ram Chandra Rai and mother of

petitioner no.3 Deepak Singh @ Deepak Kumar Yadav. On protest

made by the complainant, her husband Chandeshwar Rai assaulted her

and called other accused persons and with their assistance kicked her

READ  Shaheda Begum vs State Of A.P. And Ors. on 23 March, 2001

out of the matrimonial house after retaining her ornaments.

3. On the basis of the above allegation, after conducting

enquiry under Section 202 of the CrPC, the learned Sub Divisional

Judicial Magistrate vide order dated 20.04.2013 summoned the

petitioners and aforesaid Chandeshwar Rai to face prosecution under

Section 498A of the IPC.

4. A short but pointed argument has been advanced by the

learned counsel for the petitioners that the petitioners cannot be

prosecuted for the offence under Section 498A of the IPC since,

admittedly, they are not the „relatives‟ of the husband of the

complainant. He submitted that a married lady or her relatives having

extra marital relationship with a married man, who has no relationship

with that lady cannot be prosecuted for the offence punishable under

Section 498A of the IPC.

5. Fortunately, learned counsel for opposite party no.2

conceded that the petitioners are in no way related to the husband of
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the complainant. He also conceded that existence of relationship

between the accused husband and the other accused is a pre-requisite

to constitute offence under Section 498A of the IPC.

6. However, learned Additional Public Prosecutor

appearing for the State pleaded differently. He submitted that these

are the questions of fact which can be determined by the learned

Magistrate at an appropriate stage of the trial. He submitted that the

impugned order summoning the petitioners to face trial is neither

vitiated in law nor on facts.

7. I have heard learned counsel for the petitioners and

perused the record.

8. In order to appreciate the point raised before the Court, I

deem it apposite to refer to Section 498A of the IPC, which reads as

under:-

“498A. 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-

(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
Patna High Court Cr.Misc. No.42633 of 2013 dt.08-04-2017

READ  Suman vs State Of Maharashtra on 28 June, 2007

4/6

(whether mental of 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 on account of failure by her or
any person related to her to meet such demand.”

9. In order to constitute an offence punishable under

Section 498A of the IPC following ingredients are necessary:-

(a) A woman must be married;

(b) She must be subjected to cruelty or harassment; and

(c) Such cruelty or harassment must have been shown either
by husband of the woman or by the „relative‟ of her
husband.

10. Thus, necessary ingredients of Section 498A of the IPC

are that besides the husband, the other accused persons must be

„relative‟ of the woman‟s husband.

11. The term „relative‟ has not been defined in the IPC. In

absence of any statutory definition to the „relative‟ it must be given a

meaning as is commonly understood.

12. In U.Suvetha vs. State by Inspector of Police and

Another [(2009) 6 SCC 757], Hon‟ble Supreme Court observed:-

“In the absence of any statutory definition, the term
“relative” must be assigned a meaning as is
commonly understood. Ordinarily it would include
father, mother, husband or wife, son, daughter,
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brother, sister, nephew or niece, grandson, or
granddaughter of an individual or the spouse of any
person. The meaning of the word “relative” would
depend upon the nature of the statute. It principally
includes a person related by blood, marriage or
adoption.”

13. In the said decision, the Hon‟ble Supreme Court further

READ  Krishan Kumar vs State Of Haryana on 23 May, 2014

observed:-

“By no stretch of imagination would a girlfriend
or even a concubine in an etymological sense
be a “relative”. The word “relative” brings
within its purview a status. Such a status must
be conferred either by blood or marriage or
adoption. If no marriage has taken place, the
question of one being relative of another would
not arise.”

14. In the present case, as noticed hereinabove, the

petitioner no.1 is alleged to be a married lady living in relationship

with the husband of the complainant. So far as the other two

petitioners are concerned, it is alleged that they happen to be father

and mother of petitioner no.1. By no stretch of imagination these

three petitioners can be said to be „relative‟ of the husband of the

complainant.

15. In that view of the matter, in absence of one of the
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essential ingredients of the offence, the impugned order whereby the

petitioners have been summoned to face trial for the offence

punishable under Section 498A of the IPC cannot be sustained.

16. Accordingly, the impugned order 20.04.2013 passed by

the Sub Divisional Judicial Magistrate, Vaishali in connection with

Tr. No.3194 of 2013 as far as the petitioners are concerned, is hereby

quashed.

17. The application stands allowed.

(Ashwani Kumar Singh, J)
Md.S./-

AFR/NAFR NAFR
CAV DATE N/A
Uploading Date 13.04.2017
Transmission
Date

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