Sunday, 3 July 2016

Whether wife of brother of complainant can be prosecuted under S 498A of IPC?

  
So, from the above successive decisions of the Apex Court, it can
be noted that penal provisions required strict construction and when the
phrases of a statute are not defined, they have to be understood in the
natural, ordinary or popular sense. That being so, the phrase relative of
the husband employed in Section 498A IPC should be understood as  
relatives of the husbands side with whom he obtained relationship by
way of blood, marriage or adoption. That being so A6 during the relevant
period being the sister-in-law of complainant, she cannot be said to be the
relative of the husband.  It is true by virtue of marriage between A1 and
complainant, the relatives of one side became relatives of both sides in a
general sense. However, for the strict construction of penal provision
under Section 498A, A6 who was the relative of the complainant, cannot
be said to be the relative of the husband of the complainant i.e.A1. For this
reason and also for the reason that no allegations of cruelty falling within
the meaning of Section 498A IPC and the allegations touching other
offences are made against A6, she deserves quashment of the proceedings. 
ANDHRA PRADESH HIGH COURT
THE HONBLE SRI JUSTICE U. DURGA PRASAD RAO           

Criminal Petition No.8086 of 2013

Dated:01-06-2016 

Smt. Shaik Riayazun Bee.
Vs

The State of A.P. rep by P.P High Court of A.P, Hyderabad  and another..




        In this petition filed under Section 482 Cr.P.C., the petitioner/A6
seeks to quash the proceedings in Cr.No.93 of 2013 of II Town Police
Station, Madanapalle whereunder the petitioner and five others were
charged for the offences under Sections 498A, 323 and 506 IPC and
Sections 3 and 4 of Dowry Prohibition Act, 1961.
2a)     A2 and A3 are parents, A4 is the sister and A5 is the brother of A1.
Petitioner/A6 is concerned, she is former wife of complainants elder
brotherAmjad Baig. The defacto complainant is the wife of A1. She
filed a private complaint before the Judicial Magistrate of First Class,
Madanapalle against A1 to A6 for the aforementioned offences and the
said complaint was forwarded to the police of Madanapalle II Town PS
under Section 156 (3) Cr.P.C. and the same was registered as Cr.No.93 of
2013 and being investigated into.  Hence, the instant quash petition at the
instance of petitioner/A6.
b)      The private complaint which was registered as FIR is a long
document containing various instances of harassment and cruelty
allegedly meted out by A1 to A5 against the complainant with which we
are not much concerned, as A1 to A5 are not before us. In the instant
application, we are solely concerned with the allegations levelled against
petitioner/A6.  Such allegations can be found in para-7 of the complaint
which reads thus:
Para-7 The eldest brother of the complainant who was the
former husband of accused No.6 is working as software
engineer at London. The eldest brother of the complainant
secured employment to accused No.1 at London and accused    
No.1 was staying in the house of the eldest brother of the
complainant and accused No.6 at London for some months   
and later the complainant also went to London and stayed in
the house of her brother. During the stay of accused No.1 in
the house of the elder brother of the complainant, the accused
No.1 used to move very closely with accused No.6 and later
accused No.1 developed illicit intimacy with accused No.6
and both of them used to stay together lonely and the
complainant noticed accused No.1 and accused No.6 in one  
room lonely since then accused No.6 began to spread false
news against the complainant before relatives stating that the
complainant is not suitable match to accused No.1 and the
accused No.1 had no liking towards the complainant.
c)      So, the basic allegation against petitioner/A6 is that the elder
brother of the complainant viz. Amjad Baig was the former husband of
petitioner/A6 and he was working as software engineer at London and at
that time, himself and A6 were living together at London. He secured a
job for at London probably at the instance of complainant and A1 for
some time stayed in the house of elder brother of complainant at London.
Thereafter, complainant also went to London and stayed in the house of
her brother and during her stay in her brothers house, she noticed that her
husband (A1) and her sister-in-law i.e. A6 were moving closely and they
developed illicit intimacy. She claimed that she noticed them in a
compromised position. This is one allegation against A6 and also of
course against A1. She further alleged that A6 began spreading false
remours against complainant before relatives stating that complainant was
not a suitable match to A1 and he was not liking her.
d)      Apart from the above allegations, the complainant made an
omnibus allegation as if on the instigation of A2 to A6, several times A1
physically assaulted the complainant while staying at London and also at
Nellore. It may be noted that after the above instance, it appears that the
elder brother of complainant took divorce against A6 in London in a
Family Court at London on some grounds but not on the ground that she 
was having illicit connection with A1.
3)      Heard arguments of learned counsel for petitioner, learned counsel
for 2nd respondent/complainant and learned Public Prosecutor (AP).
4a)     Learned counsel for petitioner/A6 sought for quashing the
proceedings on two main grounds. Firstly, even if allegations in the FIR
are taken to be true, they do not constitute any offence against
petitioner/A6 muchless offence under Section 498A IPC because she is 
not a relative of the husband within the meaning of Section 498 IPC, as
she was the sister-in-law of complainant during the relevant period but not
the relative of her husband and further, the allegations against her were
only to the effect that she allegedly had an illicit connection with the
husband of the complainant i.e. A1 and she made a propaganda that 
complainant was not a mach to A1 and he had no liking for her. So, going
by the allegations in the FIR they do not attract the offence under Section
498A IPC because she is not the relative of the husband (A1) and she has
not committed any acts of cruelty. It is argued that the other offences are
also not attracted against her.  He relied upon the decision of the Apex
Court in State of Punjab v. Gurmit Singh .
b)      Secondly, it is argued that as per the FIR allegations the offence
was committed at London and therefore, the police and Courts in India
have no jurisdiction to investigate and try the case.
5a)      Per contra, learned counsel for R2/complainant and learned Public
Prosecutor vehemently argued that at the relevant time of offence A6 was
the wife of complainants eldest brother and the marital relationship
existed between them. By virtue of the marriage between A1 and
complainant, A1 acquired relationship with the relatives of complainants
side. Therefore, though A6 was not directly a relative of A1, however, by
virtue of his marriage with complainant, A6 became the relative of A1 and
therefore, she can be called as relative of the husband within the
meaning of Section 498A IPC. As A6 made false propaganda against  
complainant and incited A1 to harass her, she is squarely liable for the
offence under Section 498A IPC.
b)      Secondly, with regard to jurisdiction aspect, it is argued that the FIR
allegations would show some part of the offence committed by the
accused took place in India and some part took place at London. As it
being a continuous offence, the investigation and trial can be taken place
in India. Thus they prayed to dismiss the petition.

6)      In the light of above rival arguments, the point for determination is:
Whether there are merits in this petition to allow
7a) POINT:  The second contention of the petitioner is concerned, I am
unable to accept the same because the allegations levelled in the FIR
clearly disclose that some part of the offences levelled in the FIR took
place in India and some part of the offences took place in London and
therefore, in my considered view, it is preposterous for petitioner/A6 to
contend that offence cannot be investigated and tried in India.
b)      Then, coming to main argument of the petitioner, I find much force
in it. The facts would show that during the relevant period of alleged
offence, petitioner/A6 was the wife of Amjad Baigelder brother of
complainant. The marital tie was subsisted between them at that time and
they were living at London. As already stated supra, the allegation is that
on account of job, A1 went to London and resided in the house of the
elder brother of complainant at London and thereafter complainant also
joined him and during her stay she noticed that some illicit intimacy was
developed between A6 and A1. When she questioned them, A6 started   
making propaganda that complainant was not a fit match to A1 and he has 
no liking for her. Hence the moot point is whether the offence under
Section 498A IPC is applicable to petitioner/A6 even if the allegations
levelled in the FIR are taken to be true on their face value.  Section
498IPC says: 

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 wilful 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 to meet such
demand. 
8)      The controversy is relating to interpretation of the phrase relative
of the husband of a woman employed in Section 498A IPC. No definition
of the above phrase was given in IPC. Hence, we have to necessarily
fallback on precedential jurisprudence. Once the Supreme Court was
engaged with the question whether the girl friend or concubine of husband
is a relative of the husband within the meaning of Section 498A IPC in
U.Suvetha v. State by Inspector of Police . In this Context, the Supreme
Court observed that since the provision is a penal one, it 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. Having thus observed and analyzing various decisions,
the Apex Court ultimately held that appellant who is said to be a girl
friend/concubine of the husband is not a relative of the husband of the
complainant.
9)      On another occasion, in Vijeta Gajra v. State of NCT of Delhi  the
Apex Court engaged with the question whether the foster sister who is
allegedly having illicit connection with the husband of the complainant
falls within the ambit of relative of the husband within the meaning of
Section 498A IPC. The Apex Court considering its earlier decision in
U.Suvetha (2 supra) and other decisions held that she would not fit in the
slot and accordingly quashed the proceedings against her for the offence
under Section 498A IPC. 
10)     In the above two cases, the Apex Court reiterated that relative of
the husband for the purpose of Section 498A means related by blood,
marriage or adoption.
11)     Then, coming to Gurmit Singhs case (1 supra) cited by the
petitioner/A6, the facts are that Paramjit Singh and some of his relatives
along with respondentGurmit Singh were charged for the offence under 
Section 304B IPC. Paramjit Singh is the husband of deceased. The other
accused including the respondentGurmit Singh are his relations. Gurmit
Singh is concerned, admittedly he is the brother of Paramjit Singhs
paternal uncles wife (i.e. fathers brothers wifes brother). The
respondent Gurmit Singh claimed that he is not relative of the husband
within the meaning of Section 304 IPC.  The Apex Court in that context
observed thus:

Para8 The expression relative of the husband further came up
for consideration in the case of Vijeta Gajra v. State of NCT of
Delhi ((2010) 11 SCC 618) and while approving the decision of
this Court in U. Suvetha (Supra), it was held that the word
relative would be limited only to the blood relations or the
relations by marriage. It is appropriate to reproduce the following
passage from the said judgment: 

12. Relying on the dictionary meaning of the word "relative" and
further relying on Ramanatha Aiyar's, Advance Law Lexicon (Vol.
4, 3rd Edn.), the Court went on to hold that Section 498-A Indian
Penal Code 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 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 498-A Indian Penal
Code would be limited only to the blood relations or the relations
by marriage.
The Apex Court ultimately held that he is not relative of the husband
within the meaning of Section 304B IPC.
12)     So, from the above successive decisions of the Apex Court, it can
be noted that penal provisions required strict construction and when the
phrases of a statute are not defined, they have to be understood in the
natural, ordinary or popular sense. That being so, the phrase relative of
the husband employed in Section 498A IPC should be understood as  
relatives of the husbands side with whom he obtained relationship by
way of blood, marriage or adoption. That being so A6 during the relevant
period being the sister-in-law of complainant, she cannot be said to be the
relative of the husband.  It is true by virtue of marriage between A1 and
complainant, the relatives of one side became relatives of both sides in a
general sense. However, for the strict construction of penal provision
under Section 498A, A6 who was the relative of the complainant, cannot
be said to be the relative of the husband of the complainant i.e.A1. For this
reason and also for the reason that no allegations of cruelty falling within
the meaning of Section 498A IPC and the allegations touching other
offences are made against A6, she deserves quashment of the proceedings. 
13)     In the result, this Criminal Petition is allowed and proceedings in
Cr.No.93 of 2013 of II Town Police Station, Madanapalle are quashed
against petitioner/A6.
        As a sequel, miscellaneous petitions pending, if any, shall stand
closed.
________________________    
U.DURGA PRASAD RAO, J      
Dt: 01.06.2016

Print Page

No comments:

Post a Comment