Gujarat High Court
Harshidaben Devshibhai Bhedarda vs State Of Gujarat on 18 September, 2023
Bench: M. R. Mengdey
NEUTRAL CITATION
R/CR.MA/14080/2022 ORDER DATED: 18/09/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION NO. 14080 of 2022
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HARSHIDABEN DEVSHIBHAI BHEDARDA
Versus
STATE OF GUJARAT
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Appearance:
MR CHINTAN S POPAT(5004) for the Applicant(s) No. 1
MR PARESH H VAGHELA(3580) for the Respondent(s) No. 2
MR SANDIP M PATEL(5649) for the Respondent(s) No. 2
MR. RONAK B. RAVAL, APP for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE M. R. MENGDEY
Date : 18/09/2023
ORAL ORDER
1. By filing the present Application under Section 482 of the Code of
Criminal Procedure, 1973, the Applicant (Original Accused No.3) has prayed
for quashing and setting aside the FIR being I - CR No. 11213006200871 of
2020 registered with Bhayavadar Police Station, Rajkot Rural for the offence
under Sections 498(A), 323, 504, 506(2), 114 of the Indian Penal Code.
2. Heard learned Advocate Mr. Chintan S. Popat for the Applicant. He
submitted that the present Applicant happens to be a family friend of the
husband of the present Respondent No.2. He submitted that the present FIR
has been lodged after a considerable long time. As per the FIR itself, the first
informant - Respondent No.2 was driven out of her house by her husband on
15.7.2013 whereas the FIR has been lodged by her in that regard on 29.9.2020.
There are no specific allegations levelled against the present Applicant. The
only allegation which is made against the Applicant in the FIR is to the effect
that she instigated the husband of the first informant - Respondent No.2, and
thereafter, her husband used to assault her and, it was at the instigation of the
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present Applicant that the first informant was driven out of her matrimonial
house by her husband. He further submitted that the present Applicant does not
fall in the category of the relative of the husband of the first informant, and
therefore, the ingredients for the offences punishable under Section 498(A) of
IPC are not make out against the present Applicant. He therefore submitted to
allow the present Application and quash and set aside the FIR in question qua
the present Applicant.
3. Learned APP Mr. Ronak B. Raval for the Respondent - State has
opposed the present Application and submitted that as per the FIR itself, the
present Applicant had instigated the husband of Respondent No.2 and, after her
instigation, she was assaulted by her husband and was also driven out of her
matrimonial house. Thus the ingredients for the offence alleged in the FIR are
clearly made out against the present Applicant. He therefore submitted to
dismiss the present Application.
4. Learned Advocate Mr. Sandip M. Patel appearing for Respondent No.2 -
Original Complainant has also opposed the present Application inter alia
contending that since the present Applicant wanted to marry the husband of
Respondent No.2, she wished the Respondent No.2 out of the life of her
husband and, for that purpose, she used to continuously visit the matrimonial
house of Respondent No.2 and would instigate the husband of Respondent
No.2 and, as a result of the said instigation, the husband of Respondent No.2
had driven her out of her matrimonial house. He therefore submitted that there
are serious allegations levelled against the present Applicant for commission of
the offence in question, and therefore, the Application should be dismissed.
5. Heard learned Advocates for the parties and perused the record.
6. As per the FIR, the present Applicant and the husband of Respondent
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No.2 were in illicit relationship for almost 15 years and since the present
Applicant wanted to live with the husband of Respondent No.2, she was
instigating the husband of Respondent No.2 so that he divorces Respondent
No.2. In the wake of these allegations, the first aspect, which requires
consideration is, as to whether the present Applicant can be considered as the
relative of the husband of Respondent No.2 since the offence punishable under
Section 498 of IPC can be invoked only against the husband or relative of the
husband of a woman. The present Applicant was in illicit relationship with the
husband of Respondent No.2, she was nowhere connected with the family of
Respondent No.2. The Hon'ble Apex Court in its judgment in case of U.
Suvetha v. State By Inspector of Police reported in 2009 (6) SCC 757, in
paragraph 12 onward has observed as under:
"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
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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].
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. (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.
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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]."
[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
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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 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 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.
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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 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 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 ]. 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
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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 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."
6.1 In view of the aforesaid observations of the Hon'ble Apex Court, the
present Applicant cannot be termed as a relative of the husband of Respondent
No.2.
7. Even otherwise, having regard to the allegations levelled against the
present Applicant in the present FIR are concerned, they are only to the effect
that she instigated the husband of Respondent No.2. There is nothing in the
FIR to indicate as to how the present Applicant used to instigate the husband of
Respondent No.2 and what was the form of such instigation. Except this, there
are no other allegations against the present Applicant in the FIR in question.
8. The Applicant has also produced a copy of the Plaint in Regular Civil
Suit No. 30 of 2020 presented by the present Respondent No.2 against her
husband and the present Applicant. Upon perusal of the said copy of the plaint,
it appears that Respondent No.2 was interested in the property belonging to her
husband. It also indicates that after 2013, when Respondent No.2 was
allegedly driven out of her house, the children namely Bhakti and Yug are
residing with her husband. It is also required to be noted that though
Respondent No.2 was driven out of her house by her husband in the year 2013,
no complaint whatsoever has been lodged by her till the present FIR was
lodged in the year 2020. The FIR does not indicate any explanation as regards
delay caused in lodging the FIR. The FIR appears to be lodged as an
afterthought after the Civil Suit was filed by Respondent No.2.
9. In view of the aforesaid discussions, the present Application deserves
consideration and hence the same is hereby allowed. The FIR being I - CR No.
11213006200871 of 2020 registered with Bhayavadar Police Station, Rajkot
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Rural for the offence under Sections 498(A), 323, 504, 506(2), 114 of the
Indian Penal Code, and all other consequential proceedings arising there from
are hereby quashed and set aside so far as it relates to the present Applicant.
Rule is made absolute qua the present Applicant.
(M. R. MENGDEY,J)
J.N.W / 13
