Patna High Court
Nirmala Devi @ Nirmala PandeyversusThe State Of Bihar
- Decided
- Disposal
- ALLOWED
- Bench
- SANDEEP KUMAR
Holding
The petitioner is not a relative of the husband, so Section 498A IPC is inapplicable and the criminal proceedings against her are quashed.
Summary
The petitioner, Nirmala Pandey, filed an application under Section 239 of the Cr.P.C. to quash the order that had proceeded against her under Section 498A of the IPC based on allegations by an informant that she was involved in an illicit relationship with the informant's husband. The court examined whether the petitioner could be deemed a "relative" of the husband, a prerequisite for liability under Section 498A. Relying on Supreme Court precedents (Sunita Jha, U. Suvetha, Dechamma I.M., Kartikey Kumar) that restrict the term "relative" to blood, marriage or adoption, the court held that the petitioner was neither a wife nor a relative of the husband. Consequently, the prosecution could not sustain a charge under Section 498A, and continuing the proceedings would amount to an abuse of process. The court therefore quashed the order dated 19.02.2016 and allowed the petition.
Issues considered
- Whether the petitioner qualifies as a "relative" of the husband for the purposes of Section 498A IPC.
- Whether the material on record is sufficient to sustain a charge of cruelty under Section 498A against the petitioner.
- Whether the continuation of criminal proceedings against the petitioner amounts to an abuse of process of law.
Legislation cited
- Code of Criminal Procedure, 1973 — s. 239
- Indian Penal Code — s. 498A
Subjects
- Section 498A
- relative definition
- cruelty
- quash petition
- Criminal Procedure Code
- abuse of process
- inter-caste marriage
- legal standing
Judgment
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL MISCELLANEOUS No.41932 of 2016
Arising Out of PS. Case No.-99 Year-2014 Thana- GOVINDGANJ District- East Champaran
======================================================
Nirmala Devi @ Nirmala Pandey W/o Late Suryadeo Pandey, D/o Brahamdeo
Pandey Resident of Village -Pakridayal P.S- Pakridayal, Distt- East
Champaran.
... ... Petitioner/s
Versus
The State Of Bihar
... ... Opposite Party/s
======================================================
Appearance :
For the Petitioner/s : Mr.Jitendra Kumar Giri, Advocate
Mr. Kishore Saurabh, Advocate
For the Opposite Party/s : Mrs. Asha Devi, APP
For the Informant : Mr.Abhishek Kumar, Advocate
Mr.Hemant Ray, Advocate
======================================================
CORAM: HONOURABLE MR. JUSTICE SANDEEP KUMAR
ORAL ORDER
5 13-01-2026 Heard learned counsel for the petitioner and learned
counsel for the State.
2. This application has been filed on behalf of
the petitioner to quash the order dated 19.02.2016 passed in
Trial No. 1002 of 2016 in connection with Govindganj P.S. Case
No. 99 of 14 whereby the application preferred by the petitioner
under Section 239 of the Cr.P.C was rejected.
3. As per the prosecution case, the informant
one Sashi Shree @ Moni had stated that she was a teacher in
D.P.S school and her husband, namely, Braj Kishore Prasad was
employed as a loan officer in the State Bank of India. It is
alleged by the informant-wife that the her husband Braj Kishore
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Prasad used to come to her house and subsequently had
proposed for marriage with the informant before her parents and
fraudulently convinced the parents of the informant. The
informant states that her marriage with the aforeasaid Braj
Kishore Prasad was solemnized according to the Hindu
traditions, however the informant later came to know that her
marriage was an inter caste marriage. The informant thereafter
states that she decided to continue living with her husband at
Motihari and subsequently she also became pregnant. The
Informant thereafter alleges that she got information that
whenever she went to her paternal home, her husband used to
come along with another lady and later started living with her in
the same house, however when the informant inquired about the
said lady, it is alleged that, her husband said that she was his
sister-Nirmala Pandey, the present petitioner. The informant
alleges that her husband was having illicit relations with the
petitioner and also with another lady who was living in Patna.
The informant also states that the husband had compromised a
criminal case wherein allegations of establishing sexual
relations on the pretext of marriage was leveled against him.
4. Learned counsel for the petitioner submits
that petitioner is not the relative of the main accused and still
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she has been prosecuted under Section 498A of the I.P.C.
5. It is the case of the petitioner that she is
neither married wife of Braj Kishore nor any relative of her
husband moreover there was no act of commission or omission
to bring the petitioner in ambit of case u/s 498A as well as other
sections and that the petitioner is in no way concerned with the
husband of the informant. The husband of the informant being a
loan officer in S.B.I, assured the petitioner to grant loan and he
called petitioner at home in presence of the informant to
examine the required document for granting the loan to the
petitioner.
6. It has been submitted by the learned counsel
for the petitioner that the petitioner went at the home of Braj
Kishore Prasad only when the informant was present at home
and that the husband of the informant should not have called
any customer at home, despite knowing that presence of a
female customer at home was unpleasing to the informant. He
next submits that the informant herself is not consistent and fair
in making allegations against the petitioner as she alleged in the
later part of the F.I.R. that her husband used to bring several
women in the house in her absence and he was also facing trial
due to his illicit relations with another lady of Patna.
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7. The learned counsel for the petitioner further
submits that the informant knew that her husband did not belong
to her caste and that her husband was already married with
Reshma Praveen in the year 2010 and was facing a Criminal
Trial no. 2033/14 lodged by his first wife Reshma Praveen, still
she married him and therefore the present informant herself is
the second wife of Braj Kishore Pd., hence the marriage of the
informant with Braj Kishore Prasad is itself void.
8. Lastly, the learned counsel submits that the
informant has not made any allegations against the petitioner
that she has performed marriage with her husband or whether
she has been subjected to torture by the petitioner. Moreover, the
responsible persons are the husband of the informant as well as
the informant herself who did not await the decision of the court
when case was pending but performed marriage in haste.
Therefore, the material collected during the investigation are not
enough to initiate trial against the petitioner and the allegations
made in the F.I.R. are also not enough to prosecute the petitioner
under section 498 A of I.P.C., and that the learned court has
erred in rejecting the petition under 239 of Cr.P.C, it is a fit case
where the petitioner should be discharged.
9. Per contra, the learned counsel for the
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respondents have opposed the present application. Further the
learned counsel for the State as well as learned counsel for the
O.P. No. 2 have opposed the prayer of the petitioner but are not
able to show that the petitioner is related to the family of the
husband of the informant.
10. I have considered the submissions of the
parties and perused the materials available on record.
11. The relevant Section 498A of I.P.C. reads as
under:-
“[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 purposes 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.]”
(emphasis supplied)
12. The Hon’ble Supreme Court in the case of
Sunita Jha vs. State of Jharkhand and Anr. reported as (2010)
10 SCC 190, considering the earlier precedent in U. Suvetha vs.
State reported as (2009) 6 SCC 757 had held as under -
11. While construing the provisions of Section 498-A
IPC in the given circumstances, this Court
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observed that Section 498-A 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.
“18. … If no marriage has taken place, the
question of one being relative of another
would not arise.” (U. Suvetha case [(2009)
6 SCC 757 , SCC p. 765, para 18)
xxxxx
14. 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.
15. Section 498-A IPC, as extracted herein above, 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 Explanation thereto. The question
as to who would be a relative of the husband for
the purpose of Section 498-A has been
considered in detail in U. Suvetha case [(2009) 6
SCC 757 : (2009) 3 SCC (Cri) 36] . 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 acknowledgment
would not be available in the facts of this case. No
doubt, there is direct allegation against the
appellant of cruelty against Respondent 2, Asha
Rani Pal, but as indicated in U. Suvetha case
[(2009) 6 SCC 757 : (2009) 3 SCC (Cri) 36] , the
same would enable Respondent 2 to proceed
against her husband under Section 498-A IPC and
also against the appellant under the different
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provisions of the Hindu Marriage Act, 1955, but
not under Section 498-A IPC.
16. 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 6-2-2006 by the learned Sub-
Divisional Judicial Magistrate, Dumka, under
Section 498-A IPC, is hereby quashed.”
13. The Hon’ble Supreme Court in the case of
Dechamma I.M. v. State of Karnataka, reported as 2024 SCC
OnLine SC 385, had held as under
8. This Court, in the case of U. Suvetha (supra), had
an occasion to consider a question as to whether
the girlfriend or a woman with whom a man has
had romantic or sexual relations outside of
marriage would be a “relative of the husband” for
the purposes of prosecution under Section 498A of
IPC.
9. This Court, after considering the earlier
judgments of this Court and the dictionary
meaning of a relative, observed thus:—
“18. By no stretch of imagination would a
girlfriend or even a concubine in an
etymological sense 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.”
10. It could thus be seen that this Court has, in
unequivocal terms, held that a girlfriend or even
a woman with whom a man has had romantic or
sexual relations outside of marriage could not be
construed to be a relative.
11. Apart from that for bringing a case under Section
498A of IPC, the material placed on record should
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show that the ill treatment was meted out by the
husband or a relative, which is connected with
non-fulfilment of demand of dowry.
12. Taking the allegations at their face value in the
FIR or even in the entire material placed in the
charge-sheet, it will show that there is no
averment or material to show that the appellant
was in any way concerned with causing
harassment to respondent No. 2 on account of
non-fulfilment of demand of dowry.
13. In that view of the matter, we are of the considered
view that the continuation of the criminal
proceedings against the appellant herein would be
nothing else but an abuse of process of law. We
find that the present appeal deserves to be
allowed.”
14. A coordinate bench of this Court in the case
of Kartikey Kumar v. State of Bihar, reported as 2018 SCC
OnLine Pat 6932, wherein it was held as under -
9. A perusal of the aforesaid provision would clearly
show that whoever being a husband or a relative
of the husband, subjects a woman to cruelty shall
be punished with imprisonment which may extend
to three years or fine or both. The persons,
according to this provision, who can be held liable
for prosecution for an offence under Section 498A
I.P.C., have to be the husband or the relative of
the husband and nobody else. Admittedly, the
applicants herein are neither the husband nor
relative of the husband. That being so, the
question would be as to whether they can be held
responsible for committing an offence under
Section 498A I.P.C. and whether they can be held
responsible for committing such an offence.
10. Learned counsel for the complainant had placed
reliance on the judgment of Rema Aggarwal
(supra) to canvass a contention that while
construing the provisions of Section 498A I.P.C.
the expression used therein should be construed
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liberally so as to give full effect to the purpose for
which Section 498A I.P.C. was brought into the
statute book.
11. If we analyze the judgment in the case of Rema
Aggarwal (supra), we find that in the said case the
question was as to whether the accused would fall
within the definition of “husband” as used in
Section 498A I.P.C. as it was found that the
complainant therein Rema Aggarwal was not
married to the accused person, it was not a valid
marriage as she was staying with him when the
first wife of the accused was alive and there was
no dissolution of the marriage with the first wife.
The question was as to whether a person who
keeps a woman with him, treats her like his wife
even though without conducting a marriage can
fall within the definition of husband for
prosecution under Section 498A I.P.C. It is in the
backdrop of the aforesaid factual aspect of the
matter that the judgment in question was rendered
in the case of Reema Aggarwal (supra) and the
principle was that Section 498A I.P.C. should be
given liberal interpretation so that the principle of
purposive construction and mischief rule are
given effect to. In the said case of Reema
Aggarwal, import and meaning of the word
“relative” appearing in Section 498A I.P.C. has
not at all been considered. On the contrary in the
case of U. Suvetha (supra) apart from the fact that
the judgment rendered in the case of Reema
Aggarwal (supra) was considered the meaning of
the word “relative” as appearing in Section 498A
I.P.C. was taken note of, the principle of law laid
down in the case of Reema Aggarwal is discussed
and thereafter in Paragraph 9, 10 it has been held
that the word “relative” must be assigned the
meaning as it is commonly understood and the
principles of strict interpretation has to be made
applicable while interpreting a penal provision. In
fact the principle discussed in Paragraphs 9 and
10 reads as under:—
“9. The word “cruelty” having been
defined in terms of the aforesaid
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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 498-
A of the 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
have subjected her to cruelty within the
aforementioned provision. If the appellant
had not (sic) 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 Penal Code and the
appellant may be held guilty for abetment
of commission of such an offence but not
an offence under Section 498-A of the
Penal Code.
10. 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.”
12. Thereafter, meaning of the word “relative”
appearing in various dictionaries have been taken
note of and it has been held that the word
“relative” would ordinarily mean father, mother,
husband or wife, son, daughter, brother, sister,
nephew, niece, grandson etc. It primarily includes
a person related by blood, marriage or adoption
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and not a friend or any other person. This
judgment in the case of U. Suvetha has been again
considered in the case of Sunita Jha (supra) and it
has been held that the provisions of Section 498A
is clear and unambiguous and after taking note of
the law laid down in the case of U. Suvetha
(supra), the principle therein has been affirmed.
Again, in the case of Gurmit Singh (supra) the
judgment in the case of U. Suvetha is considered,
another judgment of the Supreme Court wherein
the expression “relative” has been used i.e. in the
case of Vijeta Gajra v. State of NCT of Delhi—
(2010) 11 SCC 618 is taken note of and in
Paragraph 9 the principle has been crystallized in
the following manner—
“9. There was a reference made in this
application by the appellant for quashing
the summons arising out of the complaint
dated 15.4.2008 and also to Criminal
Miscellaneous Petition No. 2153 of 2008.
The High Court had passed the order
disposing of it since the State's Counsel
had agreed to provide copy of the
complaint and had further stated that in
the event the FIR was registered, the
applicant would be informed of this fact
and no coercive action would be taken
against her till then. In her application
there was a statement that she did not even
belong to the family of the complainant,
her husband or any of their relatives and
that all the allegations were palpably false.
It was then stated that the writ petition was
filed which came to be disposed of by the
High Court. It seems that the complainant
sought the direction to implead herself in
the writ petition-cum-Section 482 CrPC
application filed by the appellant.”
13. From the aforesaid legal principles it is very
clear that a relative has to be either by virtue of
blood relationship or a relationship that arises
on account of marriage or adoption and not
otherwise. In this case, the relationship between
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Vijay Lal husband of the complainant and the
present applicants is neither by virtue of any
blood relation nor by marriage or adoption. On
the contrary, their relationship is a friendly
relationship and they do not fall in the category
of relative, as laid down in the judgments
indicated hereinabove. This principle has been
followed by various High Courts in the
judgments cited before us i.e. by this Court,
Jharkhand High Court, Madhya Pradesh High
Court and the Punjab and Haryana High Court.
14. During the course of hearing, a judgment of the
Gujarat High Court in Cr. Misc. Application No.
468 of 2010 (Leenaben Virendrabhai Verma v.
State of Gujarat & 1) was brought to our notice
to say that in view of this judgment the
application is liable to be dismissed. We, with
due respect to the Bench, would like to differ
from the aforesaid judgment for the simple
reason that in this judgment none of the
judgments of the Supreme Court, as is detailed
hereinabove, are taken note of or interpreted. On
the contrary, the said judgment deals with
certain extra marital relationship and the fact as
to whether the accused therein was having the
relationship of husband of the complainant and
we are of the view that in the light of the law laid
down by the Supreme Court the said judgment
may not be made applicable.”
15. Now turning to the facts of the present case,
it is patently clear that the petitioner would not fall within the
meaning of ‘relative’ under section 498-A of the IPC. Therefore
the continuation of the criminal proceedings qua the petitioner
would amount to abuse of the process of law. The criminal law
has to be construed in the strict sense and since the petitioner is
not a relative of the husband, the provisions of section 498-A
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can not be attracted in the facts of the present case.
16. Therefore, considering the aforesaid
discussions and the law laid down by the Hon’ble Supreme
Court, the order dated 19.02.2016 passed in Trial No. 1002 of
2016 in connection with Govindganj P.S. Case No. 99 of 14 is
hereby quashed qua the petitioner only.
17. This application stands allowed.
(Sandeep Kumar, J)
tusharika/-
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