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498a, Extra marital affair

IN THE SUPREME COURT OF INDIA

CIVIL APPELALTE JURISDICTION

CRIMINAL APPEAL NO. 938 OF 2009 (Arising out of Special Leave Petition (Crl.) No.7163 of 2008)

U. Suvetha …. Appellant
Versus
State by Inspector of Police and another …. Respondents

JUDGMENT
S.B. SINHA, J.

1. Leave granted.

2. Whether the term “relative of husband of a woman” within the meaning of Section 498A of the Indian Penal Code should be given an extended meaning is the question involved herein.

3. Respondent No.2 was married to one Tutus Gunaraj on 18th May,2005. Allegedly, he had some connection with the appellant. On coming to know about the same the first informant asked her husband thereabout. She was allegedly ill treated. She was left by her husband to live with her mother-in-law at Cuddalore while he went to his place of work at Sivagangai.

4. Allegedly dowry demands were again made, the details whereof are

not necessary to be noticed. However, we may notice that portion of the

allegations made in the first information report, which is relevant for our

purpose. It reads as under :-

“Even though properly advised my husband he has not cut the
illegal relationship with the said Swetha. If I talk about her, my husband beat
me and tortured me. My mother-in-law also abetting him. If my husband received
the salary, he gave the same with his aunt Thangam, then whenever required, at
that time he get the money from her for his expenses. Even though my mother-in-
law has known very well about the illegal intimacy of the husband with Swetha
wantonly given married me with him. The address of the said lover Swetha is D/o.
Venka Takrishnan, No.167, Majestic Colony Valasaravakkam, Alwarthirunagar,
Chennai-50, for not paying the money and jewellery my husband of my mother-in-
law compelled me to get divorce and tortured me. I am tolerating all these
hardships. In the deepavali of the year 2006 my husband told me that he is going
to his native and left me with my parents’ house.

2

Hence my father send/issued a legal notice to my husband and my
mother-in-law on 13.11.2006, then even though conciliation talks made, but the
said conciliation failed on 12.1.07. My husband filed petition for divorce.
Hence I request you to take immediate action on my complaint and get back my
dress and my TV Scooty NoTN05 C 4971. My husband and my mother-in-law concealed
the true facts and married me and spoiled my life. Hence, I also request you to
take action against them and file a case against them and get punished them in
accordance with law. My husband and mother-in-law tortured and ill- treated me
by demanding dowry. They have scolded me with untoward and untolerable words and
beat me so many times and treated me very badly. Hence, I pray to take action in
accordance with law against them and punish them. My husband’s aunt Tmt.
Thangam, her son-in-law Utha, and his concubine Swetha all are inducing my
husband and my mother-in-law to ill treat me and tortured me. Hence I request
you to take action against those persons and punish them in accordance in law
after filing a case.”

5. Inter alia on the premise that the allegation made against the appellant

in the first information report, even if it be given face value, does not

disclose an offence under Section 498A of the Indian Penal Code, an

application for discharge was filed by her. The same was dismissed on 25 th

March, 2008. A revision application filed thereagaisnt has been dismissed

by the High Court by reason of the impugned judgment dated 1st August,

2008.

3

6. In the first information report except at one place the appellant has

been described by the first informant as `girl friend’ of her husband and only

at the end the word `concubine’ has been used.

The core question which arises for consideration is as to whether the

`girl friend’ would be a `relative of husband of a woman’ in terms of Section

498A of the Indian Penal Code.

Section 498A of the Indian Penal Code 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 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 meet such demand.”

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7.

The aforementioned provision was inserted in the Indian Penal Code

by reason of The Criminal Law (Second Amendment) Act, 1983 (Act No.45

of 1983). The statement of objects and reasons thereof reads as under :-

“The increasing number of Dowry Deaths is a matter of serious
concern. The extent of the evil has been commented upon by the Joint Committee
of the Houses to examine the working of Dowry Prohibition Act, 1961. Cases of
cruelty by the husband and the relatives of the husband which culminate in
suicide by, or murder of, the hapless woman concerned, constitute only a small
fraction of the cases involving such cruelty. It is therefore proposed to amend
the Indian Penal Code, the Code of Criminal Procedure and the Indian Evidence
Act suitably to deal effectively not only with cases of Dowry Death but also
cases of cruelty to married woman by their in laws.”

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8. The High Court opined that the word `paramour’ and the `concubine’

stand on the same footing. In arriving at the said opinion, it agreed with the

decision of a Division Bench of Andhra Pradesh High in Vungarala

Yedukondalu v. State of Andhra Pradesh, [ 1988 CRI. L.j. 1538 ] and

differed with the decision of the Bombay High Court, to opine :-

“The term “relative” has not been defined in Indian
Penal Code and in the absence of any such definition, we have to go by the
precedents. Assuming that the allegations made against the

5

petitioner viz., that she is the concubine of A1 is true, then, it
is to be held that there is a living relationship between the petitioner and A1
in the case and there are specific allegations to the fact that only at the
instigation of the revision petitioner, A1 is harassing the second respondent
and as such this Court is of the considered view that a charge under Section
498-A of IPC among other offence has also been rightly framed against the
revision petitioner.”

9. Ingredients of 498A of the Indian Penal Code are :-

a). The 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. Appellant herein had not been charged for abetment of a crime. Any

conspiracy amongst the accused persons has also not been alleged. A

woman in terms of the aforementioned provision must be subjected to

cruelty by her husband and/or his relative. The word `cruelty’ has also been

defined in the explanation appended thereto. It is in two parts. Clause (a) of

the said explanation refers to a conduct which is likely to drive the woman to

commit suicide or to cause grave injury or danger to her life, limb or health

(whether mental or physical); clause (b) provides for harassment of the

6

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.

It is not the case of the first informant that the appellant had any role

to play with regard to demand of dowry.

11. The word `cruelty” having been defined in terms of the aforesaid

explanation, no other meaning can be attributed thereto. Living with another

woman may be an act of cruelty on the part of the husband for the purpose

of judicial separation or dissolution of marriage but the same, in our opinion,

would not attract the wrath of Section 498A of the Indian Penal Code.

An offence in terms of the said provision is committed by the persons

specified therein. They have to be the `husband’ or his `relative”. Either
the

husband of the woman or his relative must be subjected to her to cruelty

within the aforementioned provision.

If the appellant had not been instigating the husband of the first

informant to torture her, as has been noticed by the High Court, the husband

would be committing some offence punishable under the other provisions of

the Indian Penal Code and appellant may be held guilty for abetment of

7

commission of such an offence but not an offence under Section 498A of the

Indian Penal Code.

12. 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, brother, sister, nephew or

niece, grandson or grand-daughter 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.

The word `relative’ has been defined in P. Ramanatha Aiyar

Advanced Law Lexicon – Volume 4, 3rd Edition as under :-

“Relative, “RELATIVE” includes any person related by
blood, marriage or adoption. [Lunacy Act ].

The expression “REALTIVE” means a husband wife, ancestor,
lineal descendant, brother or sister. [Estate Duty Act].

“RELATIVE” means in relation to the deceased,

a) the wife or husband of the deceased; b) the father, mother,
children, uncles and aunts of the deceased, and

c) any issue of any person falling, within either of the preceding
sub-clauses and the other party to a marriage with any such person or issue
[Estate Duty Act].

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A person shall be deemed to be a relative of another if, and only
if, –

a) they are the members of a Hindu undivided family, or

b) they are husband and wife; or

c) the one is related to the other in the manner indicated in
Schedule I-A [Companies Act, 1956].

“RELATIVE” in relation to an individual means –

a) The mother, father, husband or wife of the individual, or

b) a son, daughter, brother, sister, nephew or niece of the
individual, or

c) a grandson or grand-daughter of the individual, or

d) the spouse of any person referred to in sub- clause (b) [Income
tax Act].

“REALTIVE” means –

1) spouse of the person ;

2) brother or sister of the person ; 3) brother or sister of the
spouse of the person; 4) any lineal ascendant or descendant of the person;

5) any lineal ascendant or descendant of the spouse of the person;

[Narcotic Drugs and Psychotropic Substances Act].”

Random House Webster’s Concise College Dictionary defines

`relative’ at page 691 to mean :-

“Relative n. 1. a person who is connected with another or
others by blood or marriage.2. something having, or standing in, some relation
to something else. 3. something dependent upon external conditions for its
specific nature, size, etc. 9

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(opposed to absolute). 4. a relative pronoun, adjective, or
adverb. – adj. 5. considered in relation to something else; comparative: the
relative merits of gas and electric heating. 6. existing or having its specific
nature only by relation to something else; not absolute or independent:
Happiness is relative.

7. having relation or connection. 8. having reference : relevant;
pertinent (usually fol. by to): two facts relative to the case. 9.
correspondent; proportionate: 10. depending for significance upon something
else: “Better” is a relative term. 11. of or designating a word that
introduces a subordinate clause and refers to an expressed or implied element of
the principal clause: the relative pronoun who in “That was the woman who
called.” 12. (of a musical key) having the same key signature as another
key: a relative minor.”

13. Further

more, the provision is a penal one. It, thus, deserves strict

construction. Ordinarily, save and except where a contextual meaning is

required to be given to a statute, a penal provision is required to be construed

strictly.

This Court in T. Ashok Pai v. Commissioner of Income Tax,

Bangalore, [ 2007 (8) SCALE 354 ] held as under :-

“19. It is now a well-settled principle of law that the more
is the stringent law, more strict construction thereof would be necessary. Even
when the burden is required to be discharged by an assessee, it would not be as
heavy as the prosecution. [See P.N. Krishna Lal and Ors. v. Govt. of Kerala and
Anr. 1995 Supp (2) SCC 187].”

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[See also Noor Aga v. State of Punjab, [ 2008 (9) SCALE 681].

14. A Three Judge Bench of this Court, however, in Shivcharan Lal

Verma and another v. State of M.P., [2002 (2) Crimes 177 SC = JT (2002)

2 SC 641] while interpreting Sedction 498A of the Indian Penal Code, in a

case where the prosecution alleged that during the life of the first wife-

Kalindi, appellant therein married for the second time, Mohini, but after

marriage both Kalindi and Shiv Charan tortured Mohini as a result thereof,

she ultimately committed suicide by burning herself, opined :-.

“..One, whether the prosecution under Section 498A can at all
be attracted since the marriage with Mohini itself was null and void, the same
having been performed during the lifetime of Kalindi. Second, whether the
conviction under Section 306 could at all be sustained in the absence of any
positive material to hold that Mohini committed suicide because of any positive
act on the part of either Shiv Charan or Kalindi. There may be considerable
force in the argument of Mr. Khanduja, learned counsel for the appellant so far
as conviction under Section 498A is concerned, inasmuch as the alleged marriage
with Mohini during the subsistence of valid marriage with Kalindi is null and
void. We, therefore, set aside the conviction and sentence under Section 498A of
the IPC.”

15. A Two Judge Bench of this Court, however, in Reema Aggarwal v.

Anupam, [ (2004) 3 SCC 199 ], while construing the expression ‘husband’

11

opined that the word should not be given a restricted meaning to include

those, who had married for the second time strictly in accordance with law,

stating :-

“…If such restricted meaning is given, it would not further
the legislative intent. 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 concerned 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 cohabit 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 context of the very object and aim of the legislations introducing
those provisions.”

16. It is not necessary to go into the controversy as to whether Reena

Agarwal (supra) was correctly decided or not as we are not faced with such a

situation here. We would assume that the term `husband’ would bring

12

within its fold a person who is said to have contracted a marriage with

another woman and subjected her to cruelty.

17. Herein, as noticed hereinbefore, relationship of the appellant with the

husband of the first informant, is said to have been existing from before the

marriage. Indisputably they lived separately. For all intent and purport the

husband was also living at a separate place. The purported torture is said to

have been inflicted by the husband upon the first informant either at her in-

law’s place or at her parents’ place. There is no allegation that appellant had

any role to play in that regard.

18. By no stretch of imagination a girl friend or even a concubine in an

etymological sense would be a `relative’. The word `relative’ brings within

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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.

19. We may notice that the Andhra Pradesh High Court in Rajeti Laxmi v.

State of Andhra Pradesh, [ 1 (2007) DMC 797 ], held as under :-

“4. The entire reading of the charge-sheet and the statements
of L.Ws. 1 to 7, goes to show that it is nobody’s case of the accused or the
prosecution that A-6 is the relative of husband of L.W. 1. She

13

is only concubine of A-1 and having illicit intimacy with him.
Therefore, in the absence of any averment in the charge-sheet or any statement
that she is a relative of A1, I am of the opinion that the offence under Section
498A, IPC do not attract to A-6. Even as per the dictionary meaning
“relative” means a person connected by blood or marriage or `a
species’ related to another by common origin”. Simply because A-6 is having
illicit intimacy with A-1, it cannot be said that she is a relative of A-1.
Accordingly, the Criminal Petition is allowed quashing the proceedings in C.C.
No.233 of 2004 for the offence under Section 498-A, IPC, against the
petitioner,A-6. Insofar as the other offences are concerned, it may go on.”

A learned Single Judge of the Bombay High Court, Bench at

Aurangabad, in Swapnaja v. State of Maharashtra and another, [ Criminal

Application No.388 of 2008 decided on 21.4.2008 ], opined :-

“….Even assuming that due to her extramarital relation with
husband of the respondent No.2, she is being ill-treated or subjected to
harassment by her husband and his relatives, then also it is difficult to say
that the applicant is accountable to answer the charge for offence punishable
under Section 498-A of the I.P.C. For, she is not related to husband of the
respondent No.2 nor can be regarded as the person, who can fall within
explanation (a) or (b) of Section 498-A of the I.P.C.”

To the similar effect is the law laid down by the same High Court in

Ranjana Gopalrao Thorat v. State of Maharasthra, [ 2007 CRI.L.J. 3866 ].

14

A learned Single Judge of the Delhi High Court, however, preferred to

follow Shivcharan Lal Verma (supra) in preference to Reena Aggarwal

(supra) to hold that precedentially the former is binding on the High Court,

stating :-

” Therefore the decision in Shivcharan Lal Verma (supra) will
clearly take precedence over the decision in Reema Aggarwal (supra). That being
the case, the arguments advanced by the learned Counsel for the petitioners
would have to be accepted that the provisions of Section 498-A IPC would not be
attracted inasmuch as the marriage between Mohit Gupta and Shalini was null and
void and Mohit Gupta could not be construed as a `husband’ for the purposes of
Section 498-A IPC. Clearly, therefore, the charge under Section 498-A IPC cannot
be framed and the Metropolitan Magistrate had correctly declined to frame any
charges under Section 498-A IPC.”

Similar view was taken by a learned Single Judge of the same High

Court in Capt. Rajinder Tiwari v. The State (NCT of Delhi), [ Criminal

Revision P. No. 872 of 2006 decided on 14.12.2006 ], stating :

“9. As already indicated above, insofar as the charge under
Section 498A IPC is concerned, that issue is no longer open for debate. The same
has been decided by this Court in the case of Mohit Gupta & others (supra)
applying the ratio of the Supreme Court decision in the case of Shivcharan Lal
Verma (supra). Since the marriage between

15

Rajidner and Meenakshi was a nullity in view of the pendency of
Rajinder’s divorce proceedings qua his first wife, the offence under Section
498A, which is specific to “husband”, would not be maintainable,
therefore, the impugned order needs to be corrected on this ground also.”

20. We are, however, not oblivious of the fact that a learned Single Judge

of the Kerala High Court in John Idiculla v. State of Kerala, [ 2005 M.L.J.

(Crl.) 841 ] relying on Reema Agarwal (supra) gave a wider meaning to the

word “second wife” to hold :-

“25. The test under Section 498A 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 purpose of Section 498A IPC.
Proof of a legal marriage in the rigid sense as required under civil law is
unnecessary for establishing an offence under Section 498A 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 498A 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 498A of IPC. If
she inflicts cruelty on the legally-wedded wife of the husband, an offence under
Section 498A IPC will not lie against her.”

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21. Applying the principles laid down in various decisions referred to

above, we have no doubt, in our mind, that the appellant is not a relative of

the husband of the first informant.

22. For the reasons aforementioned, the impugned judgment cannot be

sustained. It is set aside accordingly. The appeal is allowed.

…………………………..J.

[ S.B. Sinha ]

…………………………..J.

[ R.M. Lodha ]

New Delhi

May 06, 2009

1 thought on “498a, Extra marital affair

  1. I want to discuss matter of my sister . My sister is living her marriage life since last 15 years.

    She has one daughter .

    Her husband is not treating well & is with affair with a lady who is already divorced and trying to marry her.

    He is creating trouble know .what should we do know. how should go ahead. If want any details i will give it more.

    //Please post it here http://forum.mynation.net — eDitor

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