Madhya Pradesh High Court
Harshit Namdev vs The State Of Madhya Pradesh on 20 July, 2024
Author: G.S. Ahluwalia
Bench: G.S. Ahluwalia
1 M.Cr.C. No.35340/2019
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE G.S. AHLUWALIA
ON THE 20th OF JULY, 2024
MISCELLANEOUS CRIMINAL CASE No. 35340 of 2019
HARSHIT NAMDEV
Versus
THE STATE OF MADHYA PRADESH AND ANOTHER
............................................................................................................................................
Appearance:
SHRI GAGAN BAJAD - ADVOCATE THROUGH VIDEO CONFERENCING
WITH SHRI CHITRANSH SHRIVASTAVA - ADVOCATE FOR THE
APPLICANT.
SHRI MOHAN SAUSARKAR- GOVERNMENT ADVOCATE FOT RESPONDENT
NO.1/STATE.
NONE FOR RESPONDENT NO.2/COMPLAINANT THOUGH SERVED.
............................................................................................................................................
"Reserved on : 16.07.2024"
"Pronounced on : 20.07.2024"
ORDER
This application under Section 482 of Cr.P.C. has been filed seeking following reliefs:
"a. That, this Hon'ble Court may be pleased to issue Notice and call for the proceedings, and b. After perusing the same quash the FIR no.448/2019 pending before the Police Station Kolar Road, Bhopal under Section 498 A, 306 & 34 of IPC against the present petitioner and c. Pass such other and further orders as may be deemed just proper and reasonable."
2. It is submitted by counsel for applicant that the deceased died in suspicious circumstances and accordingly, in Post Mortem report it was found that the death was on account of consumption of poisonous 2 M.Cr.C. No.35340/2019 substance. The Police conducted an inquest inquiry and after recording statements of witnesses, has registered a criminal case for offence under Sections 306, 498-A of IPC in crime No.448/2019 at Police Station Kolar Road, District Bhopal. It is further submitted that the witnesses in their statements have stated that the in-laws of the deceased including applicant used to harass the deceased and used to extend a threat to kill her and they were not intending to keep the deceased in their house. Although the deceased and her husband were given a separate room in the house but they used to disconnect the electricity and disrupt the water supply and also used to demand rent. They were using filthy language. But the deceased and her husband were residing happily. It is submitted that even if the entire allegations are accepted, no offence under Section 498-A of IPC would be made out. It is further submitted that since the applicant is not the relative of the husband of the deceased, therefore, he cannot be prosecuted for offence under Section 498-A of IPC. Further, there is no allegation to prima facie make out an offence under Section 306 of IPC.
3. To buttress his contention, counsel for the applicant has relied upon the judgments passed by the Supreme Court in the cases of Joseph Salvaraj A. Vs. State of Gujarat and Others decided on 4th July, 2011 in Criminal Appeal No.1251/2011, Mamta Shailesh Chandra Vs. State of Uttarakhand and Others decided on 29th January, 2024 in SLP (Criminal) No.7273/2019, Vijeta Gajra Vs. State of NCT of Delhi reported in 2010 (3) Crimes (SC) 160, Ramesh Kumar Vs. State of Chhattisgarh decided on 17.10.2001 in Criminal Appeal No.617/2000, Gangula Mohan Reddy Vs. State of Andhra Pradesh decided on 5th January, 2010 in Criminal Appeal No.1301/2002, 3 M.Cr.C. No.35340/2019 Prabhu Vs. The State Rep. By The Inspector of Police and Another decided on 30th January, 2024 in SLP (Cri) Diary No.39981/2022 and the judgments passed by the High Court of Gujarat in the cases of Twinkleben Umeshbhai Patel Vs. State of Gujarat decided on 04.05.2018 in R/Criminal Misc. Application No.29641/2017, Rekhaben Hemant Kumar Punamiya Vs. State of Gujarat and Another decided on 24.04.2015 in Special Criminal Appeal (Quashing) No.4244/2014.
4. Per contra, application is vehemently opposed by counsel for the State. It is submitted that although the applicant is not the relative of the husband of the deceased but since the witnesses have expressed their suspicion against applicant, therefore, FIR should not be quashed.
5. Considered the submissions made by counsel for the parties.
6. When the present application was filed, the charges were not framed. However, by order dated 23.12.2019, charges for offence under Section 498-A, 306 of IPC have been framed, but the same has not been challenged either by amending the prayer clause nor by filing revision.
7. Be that whatever it may be.
8. The first contention of counsel for the applicant is that since, he is not related to the husband of the deceased, therefore, he cannot be prosecuted for offence under Section 498-A of IPC.
9. Section 498-A of IPC reads as under :
"498-A. 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 purposes of this section, "cruelty" means--4 M.Cr.C. No.35340/2019
(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."
10. From the plain reading of the aforesaid Section, it is clear that either husband or relative of husband of a woman can be prosecuted for offence under Section 498-A of IPC.
11. The Supreme Court in the case of State of Punjab Vs. Gurmit Singh reported in (2014) 9 SCC 632 has held as under:
"8. Admittedly, the respondent is not the husband of the woman who died and, therefore, the question which falls for determination is as to whether he comes within the ambit of "any relative of her husband". The expression "relative" has not been defined in IPC. The provision with which we are concerned is a penal provision which deserves strict construction. It is well settled that when the words of a statute are not defined, it has to be understood in their natural, ordinary or popular sense. For this purpose, it shall be permissible to refer to dictionaries to find out the general sense in which the word is understood in common parlance. In Ramanatha Aiyar's Advanced Law Lexicon (Vol. 4, 3rd Edn.), the word "relative" means any person related by blood, marriage or adoption. A large number of dictionaries give this word "relative", in context, the same meaning.
9. It is relevant here to state that the expression "relative of the husband" has been used in Section 498-A IPC. While interpreting the said expression, 5 M.Cr.C. No.35340/2019 this Court in U. Suvetha v. State held it to mean a person related by blood, marriage or adoption. The relevant portion of the judgment reads as follows:
(SCC p. 762, para 10) "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."
10. The expression "relative of the husband" further came up for consideration in Vijeta Gajra v. State (NCT of Delhi) and while approving the decision of this Court in U. Suvetha, 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: (VijetaGajra case, SCC p. 621, para 12) "12. Relying on the dictionary meaning of the word 'relative' and further relying on P. RamanathaAiyar's Advanced Law Lexicon (Vol. 4, 3rd Edn.), the Court went on to hold that Section 498-A IPC 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. A reference was made to the decision in Shivcharan Lal Verma v. State of M.P. After quoting from various decisions of this Court, it was held that reference to the word 'relative' in Section 498- A IPC would be limited only to the blood relations or the relations by marriage."
11. It is a well-known rule of construction that when the legislature uses same words in different parts of the statute, the presumption is that those words have 6 M.Cr.C. No.35340/2019 been used in the same sense, unless displaced by the context. We do not find anything in context to deviate from the general rule of interpretation. Hence, we have no manner of doubt that the word "relative of the husband" in Section 304-B IPC would mean such persons, who are related by blood, marriage or adoption. When we apply this principle the respondent herein is not related to the husband of the deceased either by blood or marriage or adoption. Hence, in our opinion, the High Court did not err in passing the impugned order. We hasten to add that a person, not a relative of the husband, may not be prosecuted for the offence under Section 304-B IPC but this does not mean that such a person cannot be prosecuted for any other offence viz. Section 306 IPC, in case the allegations constitute offence other than Section 304-B IPC."
12. Thus, it is clear that any person, who is related by blood or by marriage, can be treated as a relative of the husband of the woman.
13. Now the only question for consideration is that whether the applicant is the relative of the husband of the deceased or not?
14. Admittedly the applicant is not related by blood.
15. Now the only question is that whether the applicant can be treated as related by marriage or not?
16. All the witnesses have stated that the co-accused Saroj Lowanshi, is the sister-in-law of the deceased. She was residing in her parental home along with the applicant. Saroj Lowanshi had already obtained divorce from her husband. Saroj Lowanshi has 2 years old child from the applicant.
17. Thus, it is clear that the allegations are that the applicant was residing along with Saroj Lowanshi in the house of the in-laws (co- accused) of the deceased and Saroj Lowanshi has also one child aged about 2 years from the applicant. Thus, it is clear that the relationship of 7 M.Cr.C. No.35340/2019 Saroj Lowanshi with applicant was accepted by her parents and brother and Saroj Lowanshi was also blessed with a child from her relationship with the applicant.
18. Therefore, now the only question for consideration is that whether the applicant, who was in live-in-relationship with Saroj Lowanshi and was also blessed with a 2 years old child out of that relationship, applicant can be treated as husband of Saroj Lowanshi/sister-in-law of the deceased, or not?
19. The Supreme Court in the case of Kamala and Others Vs. M.R. Mohan Kumar, reported in (2019) 11 SCC 491 has held as under:
"16. It is fairly well settled that the law presumes in favour of marriage and against concubinage when a man and woman have cohabited continuously for a number of years. After referring to various judgments, in Chanmuniya v. Virendra Kumar Singh Kushwaha, this Court held as under:
(SCC pp. 144-45, paras 11-16) "11. Again, in Sastry Velaider Aronegary v.
Sembecutty Vaigalie, it was held that where a man and woman are proved to have lived together as man and wife, the law will presume, unless the contrary is clearly proved, that they were living together in consequence of a valid marriage, and not in a state of concubinage.
12. In India, the same principles have been followed in Andrahennedige Dinohamy v. Wijetunge Liyanapatabendige Balahamy, in which the Privy Council laid down the general proposition that where a man and woman are proved to have lived together as man and wife, the law will presume, unless, the contrary is clearly proved, that they were living together in consequence of a valid marriage, and not in a state of concubinage.
13.InMohabbat Ali Khan v. Mohd. Ibrahim 8 M.Cr.C. No.35340/2019 Khan the Privy Council has laid down that the law presumes in favour of marriage and against concubinage when a man and woman have cohabited continuously for number of years.
14. In Gokal Chand v. Parvin Kumari, this Court held that continuous cohabitation of man and woman as husband and wife may raise the presumption of marriage, but the presumption which may be drawn from long cohabitation is rebuttable and if there are circumstances which weaken and destroy that presumption, the Court cannot ignore them.
15. Further, in Badri Prasad v. Director of Consolidation, the Supreme Court held that a strong presumption arises in favour of wedlock where the partners have lived together for a long spell as husband and wife. Although the presumption is rebuttable, a heavy burden lies on him who seeks to deprive the relationship of legal origin.
16. Again, in Tulsa v. Durghatiya, this Court held that where the partners lived together for a long spell as husband and wife, a presumption would arise in favour of a valid wedlock."
20. The Supreme Court in the case of Tulsa and Others Vs. Durghatiya and Others reported in (2008) 4 SCC 520 has held as under:
"11. At this juncture reference may be made to Section 114 of the Evidence Act, 1872 (in short "the Evidence Act"). The provision refers to common course of natural events, human conduct and private business. The court may presume the existence of any fact which it thinks likely to have occurred. Reading the provisions of Sections 50 and 114 of the Evidence Act together, it is clear 9 M.Cr.C. No.35340/2019 that the act of marriage can be presumed from the common course of natural events and the conduct of parties as they are borne out by the facts of a particular case.
12. A number of judicial pronouncements have been made on this aspect of the matter. The Privy Council, on two occasions, considered the scope of the presumption that could be drawn as to the relationship of marriage between two persons living together. In first of them i.e. Andrahennedige Dinohamy v. Wijetunge Liyanapatabendige Balahamy Their Lordships of the Privy Council laid down the general proposition that : (AIR p. 187) "... where a man and woman are proved to have lived together as man and wife, the law will presume, unless the contrary be clearly proved, that they were living together in consequence of a valid marriage and not in a state of concubinage."
13. In Mohabbat Ali Khan v. Mohd. Ibrahim Khan Their Lordships of the Privy Council once again laid down that : (AIR p. 138) "The law presumes in favour of marriage and against concubinage, when a man and a woman have cohabited continuously for a number of years."
14. It was held that such a presumption could be drawn under Section 114 of the Evidence Act.
15. Where the partners lived together for long spell as husband and wife there would be presumption in favour of wedlock. The presumption was rebuttable, but a heavy burden lies on the person who seeks to deprive the relationship of legal origin to prove that no marriage took place. Law leans in favour of legitimacy and frowns upon 10 M.Cr.C. No.35340/2019 bastardy. (See Badri Prasad v. Dy. Director of Consolidation.)
16. This Court in Gokal Chand v. Parvin Kumari observed that continuous cohabitation of (sic man and) woman as husband and wife and their treatment as such for a number of years may raise the presumption of marriage, but the presumption which may be drawn from long cohabitation is rebuttable and if there are circumstances which weaken and destroy that presumption, the court cannot ignore them."
21. The Supreme Court in the case of Dhannulal and Others Vs. Ganeshram and Another reported in (2015) 12 SCC 301 has held as under:
"12. In the fact of the case there is strong presumption in favour of the validity of a marriage and the legitimacy of its child for the reason that the relationship of Chhatrapati and Phoolbasa Bai is recognised by all persons concerned.
13. In Andrahennedige Dinohamy v. Wijetunge Liyanapatabendige Balahamy it was held that where a man and woman are proved to have lived together as husband and wife, the law will presume, unless the contrary is clearly proved, that they were living together in consequence of a valid marriage, and not in a state of concubinage. The Court observed as follows: (LW pp. 681-
82) "The parties lived together for twenty years in the same house, and eight children were born to them. The husband during his life recognised, by affectionate provisions, his wife, and children. The evidence of the Registrar of the District shows that for a long 11 M.Cr.C. No.35340/2019 course of years the parties were recognised as married citizens, and even the family functions and ceremonies, such as, in particular, the reception of the relations and other guests in the family house by Don Andris and Balahamy as host and hostess--all such functions were conducted on the footing alone that they were man and wife. No evidence whatsoever is afforded of repudiation of this relation by husband or wife or anybody."
14. In Gokal Chand v. Parvin Kumari this Court observed that continuous cohabitation of woman as husband and wife and their treatment as such for a number of years may raise the presumption of marriage, but the presumption which may be drawn from long cohabitation is rebuttable and if there are circumstances which weaken and destroy that presumption, the Court cannot ignore them.
15. It is well settled that the law presumes in favour of marriage and against concubinage, when a man and woman have cohabited continuously for a long time. However, the presumption can be rebutted by leading unimpeachable evidence. A heavy burden lies on a party, who seeks to deprive the relationship of legal origin. In the instant case, instead of adducing unimpeachable evidence by the plaintiff, a plea was taken that the defendant has failed to prove the fact that Phoolbasa Bai was not the legally married wife of Chhatrapati. The High Court, therefore, came to a correct conclusion by recording a finding that PhoolbasaBai was the legally married wife of Chhatrapati".
22. The Supreme Court in the case of Smt. Shiramabai Vs. The Captain, Record Officer of OIC Record, Sena Corps Abhilekh, 12 M.Cr.C. No.35340/2019 Gaya Bihar and others reported in AIR 2023 SC 3920 has held as under :
"11. It is no longer res integra that if a man and woman cohabit as husband and wife for a long duration, one can draw a presumption in their favour that they were living together as a consequence of a valid marriage. This presumption can be drawn under Section 114 of the Evidence Act that states as follows:
"114. The Court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case."
12. In this above context, we may refer to Andrahennedige Dinohamy and Another v. Wijetunge Liyanapatabendige Balahamy and Others, where the Privy Council observed thus:
".....where a man and woman are proved to have lived together as man and wife, the law will presume, unless the contrary be clearly proved, that they were living together in consequence of a valid marriage and not in a state of concubinage.
xxx xxx xxx "The parties lived together for twenty years in the same house, and eight children were born to them. The husband during his life recognized, by affectionate provisions, his wife and children. The evidence of the Registrar of the District shows that for a long course of years the parties were recognized as married citizens, and even the family functions and ceremonies, such as, in particular, the 13 M.Cr.C. No.35340/2019 reception of the relations and other guests in the family house by Don Andris and Balahamy as host and hostess--all such functions were conducted on the footing alone that they were man and wife. No evidence whatsoever is afforded of repudiation of this relation by husband or wife or anybody."
13. In Mohabbat Ali Khan v. Muhammad Ibrahim Khan And Others, it was again observing by the Privy council that:
"....The law presumes in favour of marriage and against concubinage when a man and a woman have cohabited continuously for a number of years......"
14. Similarly, in Badri Prasad v. Dy. Director of Consolidation and Others, this Court held as follows:
".......A strong presumption arises in favour of wedlock where the partners have lived together for a long spell as husband and wife. Although the presumption is rebuttable, a heavy burden lies on him who seeks to deprive the relationship of legal origin. Law leans in favour of legitimacy and frowns upon bastardy....."
15. In S.P.S. Balasubramanyam v.
Suruttayan alias Andali Padayachi and Others, this Court held as under:
"4. What has been settled by this Court is that if a man and woman live together for long years as husband and wife then a presumption arises in law of legality of marriage existing between the two. But the presumption is rebuttable (see Gokal Chand v. Parvin Kumari31).
16. It is true that there would be a presumption in favour of the wedlock if the partners lived together for a long spell as husband and wife, but, the said presumption is rebuttable though heavy onus is placed on 14 M.Cr.C. No.35340/2019 the one who seeks to deprive the relationship of its legal origin to prove that no marriage had taken place (refer: Tulsa and Others v. Durghatiya and Others).
17. A similar view has been taken by this Court in Madan Mohan Singh and Others v.
Rajni Kant and Another , IndraSarma v.
V.K.V. Sarma(supra) and Dhannulal And Others v. Ganeshram And Another.
18. In the case of Gokal Chand v. Parvin Kumari alias Usha Rani (supra) this Court observed thus :
"......Continuous cohabitation of man and woman as husband and wife and their treatment as such for a number of years may raise the presumption of marriage, but the presumption which may be drawn from long cohabitation is rebuttable and if there are circumstances which weaken and destroy that presumption, the court cannot ignore them."
19. In Kattukandi Edathil Valsan's Case (supra), citing the abovesaid decisions and relying on Section 114 of the Evidence Act, this Court held in the facts of the said case that there was a presumption of the marriage between the parents of the plaintiffs on the ground of their long cohabitation status, entitling their offspring to claim their share in the suit schedule property.
20.It can be discerned from the aforesaid line of decisions that the law infers a presumption in favour of a marriage when a man and woman have continuously cohabitated for a long spell. No doubt, the said presumption is rebuttable and can be rebutted by leading unimpeachable evidence. When there is any circumstance that weakens such a presumption, courts ought not to ignore the same. The burden lies heavily on the party 15 M.Cr.C. No.35340/2019 who seeks to question the cohabitation and to deprive the relationship of a legal sanctity."
23. Thus, if the allegations made against the applicant are considered in the light of alleged long cohabitation with Saroj Lowanshi coupled with the fact that not only a 2 years old child was born out such cohabitation, but the applicant was also residing in the house of the co- accused persons (in-laws of the deceased) and the relationship of Saroj Lowanshi with the applicant was also accepted by the family members of Saroj Lowanshi, then it can be safely held that there was a valid marriage between Saroj Lowanshi and the applicant. Thus, the applicant was related to the husband of the deceased by virtue of marriage.
24. So far as the allegations of cruelty are concerned, there are specific allegations that the deceased was being harassed by her in-laws including the applicant. She was not being treated properly. Although a separate room was provided to her and her husband but in order to harass them the applicant and the other in-laws used to disconnect the electricity supply or stop the water supply. Since the financial condition of the husband of the deceased was not good therefore, they were insisting for rent for providing accommodation in their own house. There are specific allegations of assaulting/beating the deceased. Although it is the contention of counsel for applicant that since the alleged cruelty was not on account of demand of dowry but in order to make out an offence under Section 498-A of IPC, demand of dowry is not a sine qua non. 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 would amount to cruelty punishable under Section 498-A of IPC.
25. Thus, this Court is of considered opinion that there are prima 16 M.Cr.C. No.35340/2019 facie allegations against the applicant warranting his prosecution. The allegations of cruelty, which have been alleged against the applicant and other in-laws are sufficient to hold that they had abetted the deceased to commit suicide. Therefore, the applicant can be prosecuted for offence under Section 498-A and 306 of IPC.
26. No other arguments were advanced by the counsel for applicant.
27. For the reasons mentioned above, this Court is of the considered opinion, that the prosecution of the applicant cannot be quashed.
28. Accordingly, the application fails and is hereby dismissed.
(G.S. AHLUWALIA) JUDGE SR* Digitally signed by SHANU RAIKWAR Date: 2024.07.20 16:10:55 +05'30'