Wednesday, July 3, 2013

498a NOT sustainable against concubine, mistress, girl-friend. File 498a against husband, mothers, sisters and be happy !




Notes as understood by me
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* Ablaa naari (apalaip peN) wife returns home to parental house for delivery of kid
* Abalaa naari (apalaip peN) wife does not return to husband ...reasons not know to us  / not clear from notes
* Ablaa naari (apalaip peN) wife allges that husband is having illicit relations with his boss / company owner !!
* Ablaa naari (apalaip peN) wife files 498A against the "other woman" , i.e. alleged girl friend or concubine  / other woman
* Court clarifies that , in this case the charge sheet includes
only offenses under sec 498a and NOT sec 109
* Court clarifies that, girl friend or concubine / other woman etc are NOT relatives and SO 498a non maintainable / sustainable against them
* Court quashes 498a against the "other - woman" , alleged girl friend or concubine of husband

* I hasten to add that IT IS terrible to malign anyone or cast aspersions on the chastity of a woman... so all the words used above are to only elucidate a case and NOT to form any opinion on anyone's character !!






**************** important disclaimer**************************

This judgment was collected from Judis nic in website and / or other websites of Govt. of India or other internet web sites like worldlii or indiankanoon. Some notes are made by Vinayak. This is a free service provided by Vinayak (pen name). Vinayak is a member of SIF - Save Indian Family Foundation. SIF is committed to fighting FALSE dowry cases and elder abuse. SIF supports gender equality and a fair treatment of law abiding Indian men. Should you find the dictum in this judgement or the judgement itself repealed or amended or would like to make improvements or comments, please post a comment on the comment section of the blog or write to e _ vinayak @ yahoo . com (please remove spaces). Vinayak is NOT a lawyer and nothing in this blog and/or site and/or file should be considered as legal advise.


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CASE FROM JUDIS dot in site
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BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

DATED: 31/01/2011

CORAM

THE HONOURABLE MR.JUSTICE V.PERIYA KARUPPIAH

Crl.O.P.(MD)No.11674 of 2010
&
M.P.(MD).No.1 of 2010

G.Viji                  .. Petitioner

Vs.

1.State by
  The Inspector of Police,
  All Women Police Station,
  Sankarankovil,
  Tirunelveli District.

2.Shanthi              ..  Respondents

Prayer

This petition is filed to call for the records pertaining to the charge sheet in C.C.No.227 of 2010, dated 28.07.2010 under Section 498(A) pending before the District Munsif cum Judicial Magistrate, Sivagiri in F.I.R. in crime No.6 of 2010, dated 08.04.2010 by the first respondent and quash the same as illegal.

!For Petitioner ... Mr.T.Lajapathi Roy

^For Respondent ... Mrs.S.Devasana for R1
            Government Advocate (Crl.Side)
            Mr.T.Senthil Kumar for R2
            Amicus Curiae

:ORDER

        This petition has been filed by the petitioner, who was ranked as second accused in C.C.No.227 of 2010 on the file of the Judicial Magistrate, Sivagiri, in a complaint taken cognizance for the offence under Sections 498(A) r/w 109 IPC, 406 and 506(i) IPC and Section 4 of Dowry Prohibition Act, seeking to quash the said proceedings against her.

    2. Heard Mr.T.Lajapathi Roy, the learned counsel for the petitioner and Mrs.S.Devasena, learned Government Advocate (Criminal Side) for the first respondent and Mr.T.Senthil Kumar, learned Amicus Curiae appointed by this Court for the second respondent.

    3. The learned counsel for the petitioner would submit in his argument that the petitioner was ranked as second accused in C.C.No.227 of 2010 on the file of the Judicial Magistrate, Sivagiri, taken cognizance on the strength of the charge sheet filed by the first respondent police on a case registered in Cr.No.6 of 2010 on the file of the first respondent police and the complaint was given by the second respondent/defacto complainant.

He would further submit that the allegation against the petitioner/second accused in the complaint as well as in the charge sheet would be that she is having immoral relationship with the defacto complainant's husband.

He would further submit that the petitioner is the proprietor of a company in the name and style of "A.R.Satyanarayanan & Co.," at Khammam, Andra Pradesh State and the husband of the defacto complainant was working with the petitioner since 1997 even before his marriage and the defacto complainant's husband was also staying in a rented premises belonging to the petitioner's property for the past 10 years and there was no allegation against the petitioner/second accused. He would also submit that even otherwise the allegations made in the complaint regarding the harassment or cruelty from the petitioner is admitted, the petitioner cannot be fastened with any criminal liability as per the provisions of the Section 498 (A) IPC, since she cannot come under the definition of the relative of the husband. Therefore, the provision of Section 498(A) IPC will not apply as against the petitioner. He also brought it to the attention of this Court a judgment of the Hon'ble Apex Court reported in (2009) 2 MLJ (Crl) 1079 (SC) in between U.SUVETHA V. STATE in support of his arguments. He would further submit in his arguments that the F.I.R allegations would go to show the harassment was only done at Andra Pradesh and there was no harassment within the limits of respondent police. He would insist the Court to come to a conclusion that the respondent police has no jurisdiction to try any harassment inflicted in Andra Pradesh and on that score itself the case registered against the petitioner cannot be sustained. He would also bring to the notice of this Court to a judgment of this Court reported in (2008) 3 MLJ (crl) 792  in between BALCHAND AND POONAM CHAND CHHAPARWAL v. STATE in support of his arguments. He would also submit in his argument that the charge sheet filed after the completion of investigation, is therefore not sustainable and the petition filed to quash the said charge sheet may be allowed.

    4. The learned Government Advocate (Criminal Side) would submit in her argument that the petitioner was charge sheeted under Section 498(A) IPC for the offence committed by her along with the first accused. She would further submit that the jurisdiction of the first respondent police is not fettered by the cause of action of harassment inflicted by the petitioner as second accused, since the defacto complainant suffered harassment and cruelty within the jurisdiction of this Court at the instigation of the second accused from Andra Pradesh and therefore, the first respondent police is also having jurisdiction to investigate and file the charge sheet against the petitioner even though she is residing at Andra Pradesh. She would further submit that in view of the said circumstances suitable orders may be passed.

    5. The learned Amicus Curiae appearing for the second respondent would submit in his argument that the petitioner as the second accused had illicit intimacy with the first accused and thereby harassed the defacto complainant and the said harassment was inflicted within the jurisdiction of the first respondent police despite the instigation was done by the petitioner from Andra Pradesh. Even if otherwise the petitioner is not punishable under Section 498(A) IPC, due to the non-classification of relative of the husband, she would be an accused for committing the offence under Section 498(A) r/w 109 IPC for such instigation and the said additional charge can be framed by the Court at any point of time on the basis of the allegations and therefore, he requests the Court that the charge sheet filed against the petitioner as second accused need not be set aside and the petition may be dismissed.

    6. I have given anxious thoughts to the arguments advanced on either side. The undisputed facts are that the defacto complainant is the wife of the first accused namely Sivasakthikumar and the said Sivasakthikumar is working under the second accused, the petitioner herein, at Andra Pradesh and after the marriage had taken place in between the first accused and the defacto complainant, they went to Andra Pradesh and were leading their married life.

    7. According to the defacto complainant, the petitioner has illicit intimacy with Sivasakthikumar, the first accused and she, the petitioner, harassed the defacto complainant at Andra Pradesh. It is the case of the defacto complainant that she had come to her parental house for delivery of child and she has not been visited by the first accused at the instigation of the second accused, the petitioner herein. However, the investigation was carried on  and a case was registered on the complaint of the defacto complainant/second respondent and a charge sheet has been filed against the second accused under Section 498(A) IPC, in simplictor and there is no inclusion of Section 109 IPC.

    8. According to the submissions of the learned counsel for the petitioner that a girl friend or concubine by virtue of her living with the husband of the defacto complainant, will not be deemed to be a relative of the husband nor inflicted any cruelty under Section 498(A) IPC. The relevant passage of the Hon'ble Supreme Court judgment reported in (2009) 2 MLJ (Crl) 1079 (SC) (cited supra) reads as follows;

>"18. By no stretch of imagination a girl friend or
>even a concubine in any 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."


    9. By referring to a judgment of Kerala High Court reported in (2005) MLJ (CRL) 841 in between JOHN IDICULLA V. STATE OF KERALA, the Honourable Apex Court in para 20 held as follows; "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) MLJ (Crl.) 841 relying on Reema Aggarwal v. Anupam (Supra) gave a wider meaning to the word "second Wife" to hold:

>"25. The test under Section 498-A 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
>498-A IPC. Proof of a legal marriage in the rigid
>sense as required under civil law is unnecessary for
>establishing an offence under Section 498-A 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 498-A IPC. A second wife
>who is treated as wife by the husband, relatives,
>friends or society can be considered to be 'relative
>of the husband' for the purpose of Section 498-A of
>IPC. If she inflicts cruelty on the legally-wedded
>wife of the husband, an offence under Section 498-A
>IPC will not lie against her."


    10. **On a careful understanding of the  principles laid down in the said judgment, we could see that a girl friend or concubine could not be a relative as defined in Section 498(A) IPC. In the said circumstances, the petitioner cannot be treated as a relative to commit an offence under Section 498(A) IPC.** However, it was argued that the petitioner had instigated and therefore, at any moment, the inclusion of Section 109 IPC can be done on the basis of the evidence adduced before the Court and therefore, the quashment of the charge sheet as against the petitioner need not be ordered. For considering the said request, we have to scrutinize the allegations made in the first information report as well in the charge sheet. The charge sheet is very clear that the petitioner was charge sheeted for an offence only under Section 498(A) IPC. Even though the complaint was made against the petitioner by the second respondent that she had instigated the first accused to make cruelty against the defacto complainant. In view of non availability of the evidence, the provisions of Section 109 IPC has not been incorporated in the charge sheet. No doubt it is true that the petitioner could be added as one of the parties at the time of adducing evidence and if the evidence produced is to the satisfaction of the Court that there was an instigation on the part of the petitioner, during the time of trial. As on today, no evidence has been gathered for that purpose and therefore, there could be no incorporation of Section 109 IPC. In the said situation, the argument advanced by the learned counsel for the second respondent to the effect that the offence under Section 498 (A) IPC r/w 109 IPC is made out and therefore, it cannot be quashed against her, is not maintainable.

    11. **Apart from that, the petitioner is permanently residing at Andra Pradesh and working towards her avocation in Andra Pradesh itself and the alleged offence said to have been committed by the petitioner as spoken to, in the charge sheet was that she was living with the first accused at Andra Pradesh and in the course of her living at Andra Pradesh with the first accused, the petitioner said to have committed the offence under Section 498(A) and she had also instigated the other accused to do cruelty for getting her relation with the first accused. Therefore, it cannot be said that the offence said to have been committed by the petitioner was committed within the jurisdiction of the first respondent police**. The judgment of this Court reported in (2008) 3 MLJ (crl) 792 (cited supra) would go to show that the person who has committed an offence in some other jurisdiction cannot be tried in the jurisdiction where the other accused have committed the offence. The relevant passage is available at paragraph 14, which reads as follows; "The principles laid down by the Hon'ble Apex Court in the decisions cited supra are squarely applicable to the facts of the instant case. As already pointed out that the entire cause of action arose only at the State of madhya Pradesh and as such, there is total lack of jurisdiction on the part of the Court of Judicial Magistrate No.III, Coimbatore. As such, this Court is left with inevitable conclusion that the proceedings initiated against the petitioners is liable to be quashed and accordingly, the proceedings initiated against the petitioners in C.C.No.1202 of 2005 on the file of the Judicial Magistrate No.III, Coimbatore, is hereby quashed."

In the said judgment, this Court had followed the principles laid down by the Honourable Apex Court reported in (2004) SCC (CRI.) 2134 in between Y.ABRAHAM AJITH V. INSPECTOR OF POLICE and thus, it has come to the said conclusion. Considering the same, the same principle is also applicable to the facts and circumstances of this case and therefore, if any offence is committed by the petitioner/second accused, it will have to be proceeded against her only at Andra Pradesh before the jurisdictional Magistrate through the jurisdictional police. But, the petitioner cannot be dragged to the jurisdiction of the first respondent (i.e.) the lower Court.

    12. On every point discussed above, we could see that the charge sheet filed against the petitioner, which was taken on file in C.C.No.227 of 2010 is not sustainable. **Therefore, the proceedings in C.C.No.227 of 2010 against the second accused alone is liable to be quashed.**

    13. For the foregoing discussion, this Court upholds the request of the petitioner to quash the charge sheet filed against her. Accordingly, this criminal original petition is ordered. Consequently, connected miscellaneous petition is closed.

jikr

To

The District Munsif cum Judicial Magistrate,

Sivagiri.