SUNITA JHA versus STATE OF JHARKHAND

[201 O] 11 S.C.R. 648

SUNITA JHA

STATE OF JHARKHAND (Criminal Appeal No. 17 45 of 2010) SEPTEMBER 13, 2010

[ALTAMAS KABIR AND A.K. PATNAIK, JJ.]

Penal Code, 1860 - s. 498A -Offence of cruelty --'Relative of the husband' Complaint case filed by respondent no.2-wife against her husband and appellant, who -was living with the accused husband allegedly as his wife -Discharge application filed by appellant dismissed Order -upheld by High Court On appeal, held: Only the husband or his relative could be proceeded against u/s.498A - S.498A cannot be applied to person who is not relation of the husband when the alleged offence is said to have been -committed Merely because appellant was living with the accused husband of respondent no.2, she did not become -family member of respondent no.2's husband High Court erred in bestowing upon the appellant the status of wife and, therefore, family member of respondent no.2's husband -Doctrine of acknowledgement would not be available in the -facts of the case Though there is direct allegation against the appellant of cruelty against the respondent no.2, but the same would enable the respondent no. 2 to proceed against her husband u/s. 49BA and also against the appellant under the different provisions of the Hindu Marriage Act, 1955, but -not u/s. 498A Doctrine of acknowledgement.

Words and Phrases:

Expression 'relative of the husband' (as in s.498-A, /PC) - Connection of

Respondent No.2 filed complaint case against her

husband, and the appellant under Section 498A IPC. The appellant filed an application for discharge, inter alia, on the ground that respondent no.2 had not been examined as witness in the case. During the arguments on the said application, the appellant contended that she could not be made an accused under Section 498A IPC since she was not relative of respondent no.2's husband and the allegations made against her did not make out case of cruelty under the aforesaid Section. However, the Magistrate rejected the appellant's application for discharge on the ground that there was prima facie evidence for framing of charge against the accused, including the appellant, under Section 498A IPc: Aggrieved, the appellant moved the High Court by way of Criminal Revision. The High Court held that since the appellant was living with the accused husband of the 0 respondent no.2, she must be deemed to have become family member of respondent no.2's husband for the purpose of Section 498A IPC, and accordingly affirmed the order of the Trial Court.

In the instant appeal the question arising for consideration was: whether the appellant became member of the family of respondent no.2's husband merely because she was living with him in his house allegedly as his wife.

Allowing the appeal, the Court

HELD: 1.1. From reading of Section 498A, IPC, it is clear that it is either the husband or the relative of husband of woman who subjects her to cruelty, who could be charged under the said Section. Such provision could not apply to person who was not relation of the husband when the alleged offence is said to have been committed. Section 498A IPC is clear and unambiguous that only the husband or his relative could be proceeded

[2010] 11 S.C.R.

agai.nst under the said Section for subjecting the wife to "cruelty", which has been specially defined in the said Section in the Explanation thereto. The High Court committed an error in bestowing upon the appellant the status of wife and, therefore, member of the family of respondent no.2's husband. The doctrine of acknowledgement would not be available in the facts of this case. No doubt, there is direct allegation against the appellant of cruelty against the respondent No.2, but the same would enable the respondent No.2 to proceed against her husband under Section 498A IPC and also against the appellant under the different provisions of the Hindu Marriage Act, 1955, but not under Section 498A IPC. [Para 13) [654-F-G; 655-A-B]

1.2. The judgment of the High Court is set aside and the cognizance taken against the appellant by the Sub-Divisional Judicial Magistrate under Section 498A IPC, is hereby quashed. [Para 14) [655-C]

U. Suvetha v. State (2009) 6 SCC 757 - referred to.

Case Law Reference:

(2009) 6 sec 757 referred to Para 7

CRIMINAL APPELLATE JURISDICTION : Criminal Appeal

No. 1745 of 2010.

From the Judgment & Order dated 29.04.2009 of the High Court of Jharkhand at Ranchi in CRR No. 410 of 2007.

· · Gaurav Agrawal for the Petitioner. ·Gopal Prasad, Mohan Pandey for the Respondents.

The Judgment of the Court was delivered by

A'LTAMAS KABIR, J. 1. Leave granted.

2. This Appeal is directed against the judgment and order

dated 29th April, 2009, passed by learned Single Judge of the Jharkhand High Court in Criminal Revision No.410 of 2007 dismissing the same and affirming the order of the Trial Court rejecting the prayer of the Appellant for being discharged from the case.

3. One Asha Rani Pal, the Respondent N<;>.2 herein, filed

complaint case against her husband, Mukund Chandra Pandit, and the Appellant herein, being Complaint Case No.404 of 2005, before the Sub-Dlvisional Judicial Magistrate:; Dumka, Jharkhand, under Section 498A IPC. The learried Magistrate by his order dated 6th February, 2006, took cognizance against the Appellant and other accused and issued process for the accused to appear before him on 5th April, 2006. Pursuant to the said order, the Appellant appeared before the learned Magistrate on 10th July, 2006, when the· prosecution examined two witnesses, namely, PW.1 Kanhai Pal, father of the Respondent No.2 and PW.2 Mukti Pal. No further evidence was led by the complainanURespondent No.2 and on 13th November, 2006, the learned Magistrate closed the pre-charge evidence and posted the case for arguments on framing of charge.

4. On 9th March, 2007, the Appellant filed an application

for discharge, inter alia, on the ground that the complainant had not been examined as witness in the case. During the arguments on the said application, it was contended that the Appellant could not be·made an accused under Section 498A IPC since she was not relative of Mukund Chandra Pandit and that the allegations made against her did not make out case of cruelty under the aforesaid Section. However, by his order dated 9th March, 2007, the learned Magistrate rejected the Appellant's application for discharge on the ground that there was prima facie evidence for framing of charge against the accused, including the Appellant, under Section 498A IPC.

5. Aggrieved by the said order, the Appellant moved the

Jharkhand High Court at Ranchi by way of Criminal Revision No.410 of 2007. As indicated hereinabove, learned Single Judge of the High Court by his order dated 29th April, 2009, dismissed the Revision Application on the ground that since the Appe!lant was living with the accused husband of the complainant, she must be deemed to have become family member of Mukund Chandra Pandit for the purpose of Section 498A IPC.

6. The case of the Appellant before us is that the High

Court erred in law in holding that the Appellant became

member of the family of Mukund Chandra Pandit merely because she was living with him in his house allegedly as his wife. Mr. Gaurav Agrawal, Advocate, appearing for the Appellant, contended that Section 498A IPC was very clear as to who could be charged under the said Section. For the sake

of convenience, the said Section is reproduced hereinbelow :-

"498A. Husband or relative of husband of woman subjecting her to cruelty. - Whoever, being the husband or the relative of the husband of woman, subjects such woman to cruelty shall be punished with imprisonment for 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 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 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 to meet such demand."

7. It will be seen from. the aforesaid provisions that it is

either the husband or the relative of husband of woman who subjects her to cruelty, who could be charged under the said Section. Such provision could not apply to. person who was not relation of the husband when the alleged offence is said to have been committed. It was contended that the Appellant was in no way related to the husband and was not his wife as held by the High Court so as to bring her within the ambit of Section 498A IPC and the charge framed against her was, accordingly, invalid and liable to be quashed. Reliance was placed by Mr. Agrawal on the decision of this Court in U. Suvetha v. State [(2009) 6 SCC 757], wherein the aforesaid question was directly in issue. This Court took up for consideration the question as to. the persons who could be charged under Section 498A IPC-baving particular regard to the phrase "relative of the husband"bccurring in the said Section. This Court categorically held that neither girlfriend nor concubine is relative of the husband within the meaning of Section 498A IPC, since they were not connected by blood or marriage to the husband.

8. The other question which fell for determination was if

husband was living with another woman besides his wife, whether the same would amount to "cruelty" within the meaning of Section 498A. It was held that if such other woman was not connected to the husband by blood or marriage, the same would not attract the provisions of Section 498A 1.P.C., although it could be an act of cruelty for the purpose of judicial separation or dissolution of marriage under the marriage laws; but could not be stretched to amount to "cruelty" under Section 498A IPC.

9. While construing the provisions of Section 498A IPC in

the given circumstances, this Court observed that Section 498A being penal provision deserved strict construction and by no stretch of imagination would girlfriend or even concubine be "relative", which status could be conferred either by blood connection or marriage or adoption. If no marriage has taken

place, the question of one being relative of another would not arise.

10. Mr. Agrawal urged that the High Court had misconstrued the provisions of Section 498A vis-a-vis the Appellant in relation to the said Section and the impugned order of the High Court was, therefore, liable to . be set aside along with the order of the learned Sub-Divisional Judicial Magistrate rejecting the Appellant's prayer for discharge from the complaint case filed by Asha Rani Pal.

.... ,.,. .,,

c. 11. An attempt was made on behalf of the complainant, Asha Rani Pal, to justify the order passed by the learned Magistrate as also the High Court on the ground that the Appellant must be deemed to have acquired the status of wife of Mukund Chandra Pandit by her conduct and the fact that they had been living together as husband and wife.

12. We have considered the submissions made on behalf

of the Appellant and the complainant wife. It may be indicated that the husband Mukund Chandra Pandit has not been made party to these proceedings. However, having regard to the view which we are taking, his presence is not necessary for disposing of the present appeal.

13. Section 498A IPC, as extracted hereinabove, is clear and unambiguous that only the husband or his relative could be proceeded against under the said Section for subjecting the wife to "cruelty", which has been specially defined in the said Section in the exp:anation thereto. The question as to who would be relative of the husband for the purpose of Section 498A has been considered in detail in U. Suvetha's case (supra). We are entirely in agreement with the views expressed in the said case and we agree with the submissions made on behalf of the Appellant that the learned Judge of the High Court committed an error in bestowing upon the Appellant the status of wife and, therefore, member of Mukund Chandra Pandit's family. The doctrine of acknowledgement would not be available

in the facts of this case. No doubt, there is direct allegation against the Appellant of cruelty against the Respondent No.2, Asha Rani Pal, but as indicated in U. Suvetha's case (supra), the same would enable the Respondent No.2 to proceed against her husband under Section 498A l.P.C. and also against the Appellant under the different provisions of the Hindu Marriage Act, 1955, but not under Section 498A l.P.C.

14. The Appeal, therefore, succeeds and is allowed. The judgment of the learned Single Judge of the Jharkhand High Court impugned in this Appeal is set aside and the cognizance taken against the Appellant on 6th February, 2006, by the learned Sub-Divisional Judicial Magistrate, Dumka, under Section 498A IPC, is hereby quashed.

Appeal allowed.