R/CR.MA/29641/2017 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION NO. 29641 of 2017
TWINKLEBEN UMESHBHAI PATEL
Versus
STATE OF GUJARAT
Appearance:
MR.MRUDUL M BAROT(3750) for the PETITIONER(s) No. 1
MR PRAVIN GONDALIYA(1974) for the RESPONDENT(s) No. 1
MR VIRAT G POPAT(3710) for the RESPONDENT(s) No. 2
MR RAKESH PATEL, APP(2) for the RESPONDENT(s) No. 1
CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA
Date : 04/05/2018
ORAL ORDER
1. By this application under Section 482 of the Code of Criminal
Procedure, 1973, the applicant – original accused has prayed for the
following reliefs:
7(A) be pleased to admit and allow this petition;
(B) be pleased to quash and set aside the impugned FIR being I
19/2017 registered at Palanpur Mahila Police Station, Banaskantha,
on 25.05.2017, under sections 498A, 323, 294(b), 506(2) and 114 of
the Indian Penal Code, qua the present petitioner;
(B1) be pleased to quash and set aside the impugned FIR being I
19/2017 registered at Palanpur Mahila Police Station, Banaskantha,
on 25.05.2017 under sections 498A, 323, 294(b), 506(2) and 114 of
the Indian Penal Code alongwith the charge sheet and Criminal Case
No.1547 of 2017 pending before the Judicial Magistrate First Class,
Deesa, qua the present petitioner;
(B2) be pleased to stay the impugned FIR being I19/2017 registered
at Palanpur Mahila Police Station, Banaskantha, on 25.05.2017,
under sections 498A, 323, 294(b), 506(2) and 114 of the Indian
Penal Code along with the charge sheet and Criminal Case No.1547 of
2017 pending before the Judicial Magistrate First Class, Deesa;
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(C) pending admission, hearing and final disposal of this petition, be
pleased to stay the FIR being number I19/2017 registered at
Palanpur Mahila Police Station, Banaskantha, chargesheet and
further proceedings qua the present petitioner.
(D) be pleased to grant any other relief or reliefs as deemed fit in the
facts and circumstances of the present case in the interest of justice.
2. The respondent – original first informant lodged an F.I.R. against
in all six persons referred to as under:
(1) Mehulbhai Nareshbhai Prajapati
(2) Maniben, Nareshbhai Rupabhai Prajapati
(3) Vejiben Rupabhai Prajapati
(4) Pinalben Nareshbhai Prajapati
(5) Nareshbhai Rupabhai Prajapati
(6) Twinkleben Umeshbhai Patel (applicant herein)
3. So far as the accused no.1 viz. Mehulbhai Nareshbhai Prajapati is
concerned, he is the husband of the respondent no.2. The accused nos.2
to 5 are the family members of the husband, whereas, the applicant
herein has been arraigned as an accused as according to the first
informant, she is the paramour of the husband.
4. The F.I.R. was lodged for the offence punishable under Sections
498A, 323, 294(b), 506(4) r/w.114 of the IPC. At the end of the
investigation, the Police filed chargesheet and the filing of the
chargesheet culminated in the Criminal Case No.1547 of 2017 pending
in the Judicial Magistrate First Class, Deesa.
5. It is the case of the first informant that the applicant herein is
responsible for creating trouble in her matrimonial life. It is the extra
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marital affair of the husband with the applicant herein that has created
trouble for the first informant. In such circumstances, the first informant
thought fit to include the applicant herein as an accused.
6. Mr. Barot, the learned counsel appearing for the applicant
submitted that Section498A of the I.P.C. will not be applicable so far as
the applicant herein is concerned because the applicant is in no way
related to the husband. So far as the other coaccused are concerned i.e.
the parents, sister etc., as they are directly related to the husband, they
can be held responsible for the offence punishable under Section498A
of the IPC. In such circumstances referred to above, Mr. Barot prays that
there being merit in this application, the same be allowed and the
proceedings be quashed.
7. Mr. Virat Popat, the learned counsel appearing for the respondent
no.2 – original first informant submitted that the applicant herein is the
root cause of all the trouble. Mr. Popat submitted that atleast by virtue
of Section114 of the IPC, the applicant can be prosecuted.
8. The learned APP appearing for the State also submitted that it is
the only on account of alleged illicit relationship with the applicant, the
matrimonial life of the first informant has got disturbed.
9. Having heard the learned counsel appearing for the parties and
having considered the materials on record, the only question that falls
for my consideration is whether the prosecution should continue against
the applicant herein.
10. This issue is squarely covered by two decisions of the Hon’ble
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Supreme Court (i) in the case of ‘Vijeta Gajra Vs. State of NCT of Delhi’
reported in AIR 2010 SC 2712; (ii) in the case of ‘U. Suvetha Vs. State
By Inspector of Police’ reported in AIR 2009 SC (Suppl.) 1451.
11. I may quote with profit the observations made by the Hon’ble
Supreme Court in the case of ‘Vijeta Gajra Vs. State of NCT of Delhi’
(Supra) as under:
7. Shri U.U. Lalit, Learned Senior Counsel, appearing on behalf of
the appellant argued that in U. Suvetha v. State By Inspector of
Police Anr. [(2009) 6 SCC 757], it was specifically held that in
order to be covered under Section 498A, IPC one has to be a
`relative’ of the husband by blood, marriage or adoption. He pointed
out that the present appellant was not in any manner a `relative’ as
referred to in Section 498A, IPC and, therefore, there is no question
of any allegation against her in respect of the illtreatment of the
complainant. The Court in this case examined the ingredients of
Section 498A, IPC and noting the specific language of the Section
and the Explanation thereof came to the conclusion that the word
`relative’ would not include a paramour or concubine or so. Relying
on the dictionary meaning of the word `relative’ and further relying
on R. Ramanatha Aiyar’s Advance Law Lexicon, Volume 4, 3rd
Edition, the Court went on to hold that Section 498A, IPC being a
penal provision would deserve strict construction and unless a
contextual meaning is required to be given to the statute, the said
statute has to be construed strictly. On that behalf the Court relied
on the judgment in T. Ashok Pai v. CIT [(2007) 7 SCC 162]. A
reference was made to the decision in Shivcharan Lal Verma Anr.
v. State of M.P. [(2007) 15 SCC 369]. After quoting from various
decisions of this Court, it was held that reference to the word
`relative’ in Section 498A, IPC would be limited only to the blood
relations or the relations by marriage.
8. Relying heavily on this, Shri Lalit contended that there is no
question of any trial of the appellant for the offence under Section
498A, IPC. The argument is undoubtedly correct, though opposed by
the Learned Counsel appearing for the State. We are of the opinion
that there will be no question of her prosecution under Section 498A,
IPC. Learned Senior Counsel appearing on behalf of the complainant,
Shri Soli J. Sorabjee, also did not seriously dispute this proposition.
Therefore, we hold that the FIR insofar as it concerned Section 498A,
IPC, would be of no consequence and the appellant shall not be tried
for the offence under Section 498A, IPC.
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12. I may also quote with profit the observations made by the Hon’ble
Supreme Court in the case of ‘U. Suvetha Vs. State By Inspector of
Police’ (Supra) as under:
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 25th March, 2008. A revision application filed
thereagaisnt has been dismissed by the High Court by reason of the
impugned judgment dated 1st August, 2008.
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. ExplanationFor
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.”
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
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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.”
8. The High Court opined that the word `paramour’ and the
`concubine’ stand on the same footing. In arriving at the said
opinion, it a greed 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 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 498A 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
woman, where such harassment, is with a view to coercing her or
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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 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 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. 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 subclauses and the other
party to a marriage with any such person or
issue [Estate Duty Act].
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
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c) the one is related to the other in the manner
indicated in Schedule IA [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 granddaughter 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.
(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.”
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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 wellsettled 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].”
[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’ 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
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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 304B/498A, whatever be the
legitimacy of the marriage itself for the limited purpose of
Sections 498A and 304B 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 304B or
498A 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 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 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
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under :
“4. The entire reading of the chargesheet 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 A6 is the relative of husband
of L.W. 1. She is only concubine of A1 and having illicit
intimacy with him. Therefore, in the absence of any averment
in the chargesheet 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 A6. 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 A6 is having illicit intimacy with A1, it cannot be
said that she is a relative of A1. Accordingly, the Criminal
Petition is allowed quashing the proceedings in C.C. No.233 of
2004 for the offence under Section 498A, IPC, against the
petitioner,A6. 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 illtreated 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
498A 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 498A of the
I.P.C.”
To the similar effect is the law laid down by the same High Court
inRanjana Gopalrao Thorat v. State of Maharasthra, [ 2007 CRI.L.J.
3866 ]. 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 498A IPC would not be
attracted inasmuch as the marriage between Mohit Gupta and
Shalini was null and void and Mohit Gupta could not be
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construed as a `husband’ for the purposes of Section 498A
IPC. Clearly, therefore, the charge under Section 498A IPC
cannot be framed and the Metropolitan Magistrate had
correctly declined to frame any charges under Section 498A
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 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.”
13. In view of the aforesaid settled position of law, it could not be said
that the petitioner who is alleged to have been having an extramarital
affair with the husband of the first informant since 2011, would fall
within the ambit of Relative.
14. In such circumstances referred to above, I am of the view that no
case is made out to put the applicant on trial on the charge of having
committed offence under Section498A of the IPC. So far as the other
offences are concerned, there are no allegations against the applicant.
15. In the result, this application is allowed. The further proceedings
of the Criminal Case No.1547 of 2017 pending before the Judicial
Magistrate First Class, Deesa, arising from the FIR being I19/2017
registered at Palanpur Mahila Police Station, Banaskantha, are hereby
quashed so far as the applicant is concerned. However, it is clarified that
the criminal case shall now proceed further expeditiously in accordance
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with law so far as other coaccused are concerned.
Rule is made absolute to the aforesaid extent. Direct service is
permitted.
(J.B.PARDIWALA, J)
aruna
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