Sunita Jha vs State Of Jharkhand & Anr

learned Single Judge of the Jharkhand High Court 2

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 No.2

herein, filed a complaint case against her

husband, Mukund Chandra Pandit, and the Appellant

herein, being Complaint Case No.404 of 2005,

before the Sub-Divisional Judicial Magistrate,

Dumka, Jharkhand, under Section 498A IPC. The

learned 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 complainant/Respondent 3

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 a 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 a relative of

Mukund Chandra Pandit and that the allegations

made against her did not make out a 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.

4

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, a learned Single Judge of the High

Court by his order dated 29th April, 2009,

dismissed the Revision Application on the ground

that since the Appellant was living with the

accused husband of the complainant, she must be

deemed to have become a 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 a 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 5

said Section. For the sake of convenience, the

said Section is reproduced hereinbelow :-

"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 6

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

a husband of a woman who subjects her to cruelty,

who could be charged under the said Section.

Such provision could not apply to a person who

was not a 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 7 498A IPC having particular regard to the phrase

"relative of the husband" occurring in the said

Section. This Court categorically held that

neither a girlfriend nor a concubine is a

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 a 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 I.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.

8

9. While construing the provisions of Section

498A IPC in the given circumstances, this Court

observed that Section 498A being a penal

provision deserved strict construction and by no

stretch of imagination would a girlfriend or even

a concubine be a "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-

`-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.

9

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 a 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 1

defined in the said Section in the explanation

thereto. The question as to who would be a

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, a 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 I.P.C. and also against the

Appellant under the different provisions of the

Hindu Marriage Act, 1955, but not under Section 1

498A I.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.

................................................J. (ALTAMAS KABIR)

................................................J. (A.K. PATNAIK) New Delhi Dated: 13.09.2010