Madras High Court
Mrs.Shyla Rose vs The Inspector Of Police on 25 October, 2019
Author: G.K.Ilanthiraiyan
Bench: G.K.Ilanthiraiyan
Crl.O.P.(MD)No.13287 of 2019
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 25.10.2019
CORAM :
THE HONOURABLE MR. JUSTICE G.K.ILANTHIRAIYAN
Crl.O.P.(MD)No.13287 of 2019
and
Crl.M.P.(MD)No.8145 of 2019
Mrs.Shyla Rose ... Petitioner/Accused No.3
Vs.
1.The Inspector of Police,
Marthandam All Women Police Station,
Kanyakumari District,
Kanyakumari. ... Respondent/Complainant
2.Mrs.Selin Sheyama
... Respondent/Defacto
Complainant
Prayer: Criminal Original Petition filed under section 482 of
Criminal Procedure Code, to call for the records pertaining to the
First Information Report in Crime No.35/2019 dated 23.07.2019 on
the file of the respondent No.1 for offence under Sections 406, 498
(A), 506 (I) of Indian Penal Code 1860 and Sections 4 & 6 of Dowry
Prohibition Act, 1961, and quash the same as illegal as against the
petitioner alone.
For Petitioner : Mr.T.Lajapathi Roy
For R1 : Mr.K.Suyambulinga Bharathi
Government Advocate (Crl.Side)
For R2 : Mr.C.K.M.Appaji
http://www.judis.nic.in
1/14
Crl.O.P.(MD)No.13287 of 2019
ORDER
This petition has been filed to quash the FIR in Crime No. 35/2019 dated 23.07.2019 on the file of the first respondent for offence under Sections 406, 498 (A), 506 (i) of Indian Penal Code 1860 and Sections 4 & 6 of Dowry Prohibition Act, 1961.
2. The learned counsel for the petitioner would submit that on the complaint lodged by the second respondent, the first respondent registered a case as against the six accused persons. In which, the petitioner arrayed as the third accused. He further submitted that the petitioner is not having illegal intimacy with the first accused as well as the other persons. The second respondent is the wife of the first accused. They got married on 22.08.2016. Thereafter, there was misunderstanding between them and as such, they were living separately. While being so, she made so many allegations as against the family members of the first accused and also lodged a complaint before the first respondent police.
3. Insofar as the petitioner is concerned, she is a neighbour of the first accused. She already got married with one Raj and now she is living with her husband. There was no illegal relationship between the petitioner and the first accused. He further http://www.judis.nic.in 2/14 Crl.O.P.(MD)No.13287 of 2019 submitted that no offence is made out as against the petitioner as alleged by the prosecution. The offence under Section 498 (A) would not attract as against the petitioner since she is being a family member of the first accused.
4. In respect of the other offence under Section 407 IPC is concerned, even according to the second respondent, the jewels and cash was handed over to the first accused and the same was pledged by him and his family members. Therefore, the petitioner also relied upon the judgment in the case of U.Suvetha Vs. State by Inspector of Police and another reported in (2009) 6 Supreme Court Cases 757, which is held as follows:-
“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.”
5. Per contra, the learned counsel for the second respondent would submit that the second respondent is the wife of the first accused. They got marriage on 22.08.2016. At the time of marriage, the first accused and his family members demanded gold http://www.judis.nic.in 3/14 Crl.O.P.(MD)No.13287 of 2019 jewels and also demanded cash of amount Rs.35,00,000/- as dowry and the same was given by the parents of the second respondent. Thereafter, the entire jewels and cash amount was given to the petitioner since the first accused is having illegal intimacy with the petitioner, who is none other than neighbour of the first accused. Therefore, the entire jewels and cash amount was handed over to the petitioner/Accused No.3 and as such, she is the main reason for the entire dispute between the first accused and the second respondent. He further submitted that it is only FIR and it cannot be quashed since it has to be find out the truth. Therefore, he vehemently opposed this petition.
6. The learned Government Advocate (Crl.Side) appearing for the first respondent would submit that on the complaint lodged by the second respondent, the crime has been registered in Crime No.35 of 2019 for the offence under Sections 406, 498 (A), 506 (i) of IPC, 1860 and Sections 4 and 6 of Dowry Prohibition Act, 1961 as against the six accused persons. In which, the petitioner arrayed as third accused. Further, he submitted that the investigation is pending and at this stage, it cannot be quashed as against the petitioner, since there is no specific allegations as against the petitioner. Therefore, he also prayed for dismissal of the petition. http://www.judis.nic.in 4/14 Crl.O.P.(MD)No.13287 of 2019
7. Heard, Mr.T.Lajapathi Roy, the learned counsel for the petitioner, Mr.K.Suyambulinga Bharathi, learned Government Advocate (Crl.Side) appearing for the first respondent and Mr.C.K.M.Appaji, the learned counsel appearing for the second respondent.
8. On the complaint lodged by the second respondent, the first respondent registered a case in Crime No.35 of 2019 for the offence under Sections 406, 498 (A), 506 (I) of IPC, 1860 and Sections 4 and 6 of Dowry Prohibition Act, 1961 as against the six accused persons. In which, the petitioner arrayed as A3. The allegation as against all the accused persons are that the second respondent got married with the first accused on 22.08.2019. Even at the time of marriage, the first accused and his family members demanded additional dowry and thereafter second respondent's gold jewels were handed over to the petitioner/A3 being a concubine by the first accused.
9. The second respondent alleging that the petitioner is concubine with the first accused and as such, the entire jewels, which was presented at the time of marriage was handed over to the petitioner herein. Therefore, to attract the offence under Section http://www.judis.nic.in 5/14 Crl.O.P.(MD)No.13287 of 2019 406 of IPC is being criminal breach of trust Whoever, being in any manner entrusted with property, or with any dominion over property, dishonestly misappropriates or converts to his own use that property. He has admittedly no property was entrust with the petitioner by the defacto complainant. The allegation itself that the jewels presented through her marriage have been handed over to the petitioner by the first accused. Therefore, the offence under Section 406 IPC would not attract as against the petitioner herein.
10. Insofar as the offence under Section 498 (A) is concerned, the petitioner is neighbour of the first accused and she is not relative of the first accused. It is also relevant to execute the provision under Section 406 IPC. Admittedly, the petitioner is neighbour of the first accused and the second respondent knowing the connection with the family members or relatives of the first accused. Therefore, the offence under Section 498 (A) would not attract as against the petitioner herein.
11. Insofar as the other offences under the Dowry Prohibition Act has not attracted as against the petitioner. Since, there is no allegation as against the petitioner as if, she also demanded dowry from the second respondent or her family members during the marriage or after the marriage. http://www.judis.nic.in 6/14 Crl.O.P.(MD)No.13287 of 2019
12. In this regard, the learned counsel for the petitioner relied upon the judgment in the case of U.Suvetha Vs. State By Inspector of Police and another reported in (2009) 6 Supreme Court Cases 757. Which is held as follows:-
“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.
11. The word “relative” has been defined in P.Ramanatha Aiyar's Advanced Law Lexicon, Vol.4, 3rd Edition as under:
“Relative-'Relative' includes any person related by blood, marriage or adoption. (Lunacy Act...) The expression 'relative' 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
(c) any issue of any person falling within either of the preceding sub-claused and the other party to a marriage with any such person or issue. (Estate http://www.judis.nic.in 7/14 Crl.O.P.(MD)No.13287 of 2019 Duty Act...) A person shall be deemed to be a relative of another if, and only if _
(a) they are members of a Hindu undivided family; or
(b) a son, daughter, brother, sister, nephew or niece of the individual, or
(c) a grandson or granddaughter of the individual, or
(d) the spouse of any person referred to in sub-clause (b) (Income Tax Act...) 'Relative' 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;
.............
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.
19.We may notice that the Andhra Pradesh High Court in Rajeti Laxmi Vs. State of A.P. Held as under : (DMC p 798, para4) http://www.judis.nic.in 8/14 Crl.O.P.(MD)No.13287 of 2019 “4.The entire reading of the charge-sheet and the statements of Lws prosecution that A-6 is the relative of husband of LW-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 A-1, I am of the opinion that the offence under Section 498 (A) IPC does 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.”
20. A learned Single Judge of the Bombay High Court, Bench at Aurangabad, in Swapnaja Vs.State of Maharastra opined:
“... Even assuming that due to her extramarital relation with husband of respondent 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 the offence http://www.judis.nic.in 9/14 Crl.O.P.(MD)No.13287 of 2019 punishable under Section 489 (a) IPC. Form she is not related to husband of respondent 2 nor can be regarded as the person, who can fall within explanation (a) or (b) of Section 498 (A) IPC.” To the similar effect is the law laid down by the same High Court in Ranjana Gopalrao Thorat Vs.State of Maharashtra.
21. A learned Single Judge of the Delhi High Court, however, preferred to follow Shivcharan Lal Verma in preference to Reema Aggarwal to hold that precedentially the former is binging on the High Court, stating:
“Therefore the decision in
Shivcharan Lal Verma will clearly take
precedence over the decision in Reema
Aggarwal. That being the case, the arguments advanced by the learned counsel for the ptitioners would have tobe accepted that the provisions of Section 498 (A) IPC would not be attracted in as much 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 cannot be framed and the Meropolitan Magistrate had correctly declined to frame any charges under Section 498 (A) IPC.” http://www.judis.nic.in 10/14 Crl.O.P.(MD)No.13287 of 2019
22.Similar view was taken by a learned Single Judge of the same High Court in Capt.Rajinder Towari Vs. State (NCT of Delhi) stating:
“9.As already indicated above, insofar as the charge under Section 498 (A) IPC is concerned, that issue is no longer open for debate. The same has been decided by this Court in Mohit Gupta applying the ratio of the Supreme Court decision in Shivcharan Lal Verma. Since the marriage between Rajinder and Meenakshi was a nullity in view of the pendency of Rajinder's divorce proceedings qua his first wife, the offence under Section 498-A, which is specific to 'husband', would not be maintainable, therefore, the impugned order needs to be corrected on this ground also.”
23.We are, however, not oblivious of the fact that a learned Single Judge of the Kerala High Court in John Idiculla Vs. State of Kerala relying on Reema Aggarwal 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 '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 cane be considered to be a 'wife' and consequently, as 'the relative of http://www.judis.nic.in 11/14 Crl.O.P.(MD)No.13287 of 2019 the husband' for the 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. If she inflicts cruelty on the legally wedded wife of Section 498-A IPC will not lie against her.”
24. 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. For the reasons aforementioned, the impugned judgment cannot be sustained. It is set aside accordingly. The appeal is allowed.”
13.The Hon'ble Supreme Court of India held that by no stretch of imagination would 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.
14.In the case on hand, the petitioner admittedly is a neighbour and alleged that she is concubine with the first accused. Therefore, the above judgment is squarely apply to the present case. As per the above discussion, no offence is made against the petitioner as allegedly by the prosecution. As such, the continuation http://www.judis.nic.in 12/14 Crl.O.P.(MD)No.13287 of 2019 of the investigation as against the petitioner in Crime No.35 of 2019 would not serve any purpose.
15. In view of the above discussion, First Information Report in Crime No.35/2019 dated 23.07.2019 on the file of the first respondent is hereby quashed only as against the petitioner alone. It is also made clear that the first respondent can proceed with the investigation as against the other accused persons and complete the same and file final report within a period of twelve weeks from the date of receipt of a copy of this order. Consequently, connected miscellaneous petition is closed.
25.10.2019 Internet : Yes / No Index : Yes / No Speaking / Non Speaking order dss To
1.The Inspector of Police, Marthandam All Women Police Station, Kanyakumari District, Kanyakumari.
2.The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai.
http://www.judis.nic.in 13/14 Crl.O.P.(MD)No.13287 of 2019 G.K.ILANTHIRAIYAN, J.
dss Crl.O.P.(MD)No.13287 of 2019 and Crl.M.P.(MD)No.8145 of 2019 25.10.2019 http://www.judis.nic.in 14/14