Kerala High Court IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl MC No. 9610 of 2002
1. JOHN IDICULLA,
… Petitioner
2. GLORY JOHN @ GLORY SAMUEL,
Vs
1. STATE OF KERALA,
… Respondent
2. VALSAMMA JOHN,
For Petitioner :SRI.K.RAMAKUMAR
For Respondent :PUBLIC PROSECUTOR
The Honble MRS. Justice K.HEMA
An interesting question arises in this case. Can
the so-called second wife of the husband who married
her during the subsistence of his earlier legal marriage,
be treated as the relative of the husband, for the
purpose of section 498A of the Indian Penal Code ( IPC,
for short) ? If so, under what circumstances ? Will an
offence under section 498A of IPC lie against such a
second wife if she inflicts cruelty on the
legally-wedded wife of the husband?
2. Here are the relevant factual details, as
unfurled from the records : Second respondent herein
filed a complaint/Annexure-I against the petitioners as
accused 1 and 2, and also against four other members of
the husbands family as accused 3 to 6 alleging offences
under sections 498A, 494 and 34 of IPC before the
Magistrates court. The complaint was forwarded by the
lower court to Police under Section 156(3) Cr.P.C. for
investigation and report. Police after investigation,
registered a crime and filed charge sheet Annexure-D
against accused 1 to 6 for the offences under Sections
498A, 494 and 34 IPC. But, the court below did not take
cognizance of offence under section 494 IPC. Specific
instances of matrimonial cruelty are narrated in the
complaint. Hence, the accused are proceeded against only
under sections 498A and 34 IPC.
3. According to Learned counsel appearing for
the petitioners, an offence under section 498A IPC will
lie only against the husband and/or `the relative of the
husband of a woman. But, the second petitioner who is
not a legally-wedded wife as per the allegations in the
complaint itself cannot be treated as `the relative of
the husband and hence she cannot be held liable for
offence under section 498A IPC. To understand the depth
of the above contention, it is necessary to examine the
language of the section first. Section 498A of IPC reads
as follows:
.SP 1
Section 498-A: Husband or relative of husband@@
i
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,@@
i
cruelty means-
(a) any wilful conduct which is of such a nature@@
i
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@@
i
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.
.SP 2
4. A reading of the section 498A IPC shows that
an offence under the said section will lie only against
the husband and/or his relatives. But who can be treated
as a relative of the husband? Borrowing meaning of the
expression, relative from other enactments like Mental
Health Act etc., and also the dictionary, it was
strenuously argued that a person can be said to be a
`relative of another only if such person is related to
the other by blood, marriage or adoption. Learned
counsel for petitioners made reference to Section 2(t) of
the Mental Health Act, 1987 which defines `relative as
follows: relative includes any person related to the
mentally ill person by blood, marriage or adoption.
Concise Oxford Dictionary, Eighth Edition was also relied
upon to explain the meaning of the word relative. As
per the said Dictionary, `relative means: A person
connected by blood or marriage. The meaning of
relative in Websters Dictionary can also be looked
into thus: Having relation to or bearing on something;
close in connection; pertinent; relevant; not absolute or
existing by itself; depending on or incident to something
else; something considered in its relation to something
else; a person connected by blood or affinity, esp. one
allied by blood; a kinsman or kinswoman.
5. Based on the above facts, it was argued that
a relative is a person who is connected to another by
blood, marriage or adoption. But, nobody has a
contention in this case that the petitioners have any
connection between them by blood. There is also no case
that there is an adoption in this case. But, the
allegations in the complaint in this case reveal that the
connection between the petitioners is only through the
marriage. The narration in the complaint also shows that
the marriage between the petitioners took place during
the subsistence of the earlier legal marriage of the
first petitioner/husband with the complainant. Hence it
was strenuously contended by Learned Counsel for
petitioners that even if the allegations in the complaint
is accepted, there is no valid marriage between the
petitioners and consequently, it cannot also be said that
they are related by marriage.
6. Another argument raised is that a relative of
the husband is a person with whom the wife will normally
interact after marriage, but such an interaction between
the first and second wife is out of question in the
peculiar facts of this case. Therefore, on this ground
also, the second petitioner cannot be said to be `the
relative of the husband. According to learned counsel
for petitioners, law can treat a second wife whose
marriage is invalid only as a mistress and not as a
wife and hence it will be paradoxical and even
ridiculing for this court to hold that such a second wife
will be liable for offence under section 498A of IPC,
conferring upon her status of a wife and relative of the
husband by marriage.
7. I do agree that the above arguments are
thought-provoking. But on a deeper probe into the
relevant aspects, I can only reject them for the
following reasons: Firstly, definition of a word or
expression given under other enactments cannot be
imported into the situation presently arising in this
case to interpret the word `relative. The word
`relative appears in other enactments in a totally
different context than what is stated in section 498A
IPC. It cannot be disputed that there are instances in
which even the same word which is undefined and used in
the same enactment in different places may have different
meanings depending upon the context in which the word may
appear. It has also to be borne in mind that the word
relative is not defined under the Indian Penal Code.
This can be or may be a deliberate omission. Legislature
must have intentionally left it open for the court to
interpret the meaning of the expression in a given case
depending on the context.
8. So, the meaning of word `relative coming
under section 498A IPC requires to be interpreted
independently, looking into the circumstances in which it
is used in the section, realising the purpose of the
legislation, understanding the intention of the law-maker
behind introduction of the provision, discerning the
object sought to be achieved and the mischief sought to
be suppressed by the particular provision. In short,
mainly Purposive construction has to be the rule which
the court must follow to interpret the relevant
expression in section 498A of IPC.
9. While doing so, as a first step towards my
attempt in understanding the real import of the word
relative, I think I can safely rely upon its
dictionary-meaning. As per dictionaries, which I have
already referred to earlier, a `relative is a person
connected to another by blood, marriage or affinity.
But, as per personal law of the parties in this case,
marriage of the second petitioner cannot be said to be a
valid one since it took place during the subsistence of
an earlier marriage of the first petitioner/husband with
the complainant. In the strict legal sense therefore,
there cannot be any relationship between such a man and
woman by marriage. A second wife for the above reason
cannot normally be given status of a wife because of
absence of a legally valid marriage.
10. But, such an inference may not be possible
in all circumstances. It will be interesting to note
that in certain situations Law itself has diluted the
rigidity of concept of marriage. For example, under
section 125 of the Code of Criminal Procedure. Though
the section deals specifically with the claim of a
legally-wedded wife, it is well-settled that even if
there is no strict proof of a legal marriage between the
man and woman, a woman will be entitled to maintenance as
a wife under section 125 of the code, if it is
established that by continued cohabitation between them
for a long period they are treated as husband and wife by
the society. In other words, strict proof of marriage is
not insisted upon under section 125 of the Code, though
as per language of the section, it is a legally-wedded
wife who will be entitled to maintenance.
11. It is also striking to note that the concept
of marriage is liberally construed for the purpose of
section 498A IPC in a recent celebrated decision of the
Supreme Court in Reema Agarwals case (2004)3 SCC 199).@@
AAAAAAAAAAAAAAA
It was held in the said decision that a liberal
interpretation is to be given to the expression
marriage, bearing in mind the object of section 498A of
IPC. While deciding the question as to who could be
covered by the expression husband coming under section
498A IPC, it was held that the concept of marriage to
constitute the relationship of husband and wife may
require a liberal and different approach when the
question of curbing a social evil arises. It was a case
in which it was contended that the marriage between the
husband/accused and wife/complainant was not legal in
view of an existing earlier marriage of the husband and
hence the accused/husband cannot be held liable under
section 498A IPC as the husband of the complainant.
12. It is worthy to extract the relevant portion
from Reema Aggarwal v. Anupam [(2004)3 SCC 199] as@@
AAAAAAAAAAAAAAAAAAAAAAAAAAAAA
follows:
.SP 1
The concept of marriage to constitute the@@
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relationship of husband and wife may require
strict interpretation where claims for civil
rights, right to property etc. may follow or
flow and a liberal approach and different
perception cannot be an anathema when the
question of curbing a social evil is
concerned…….. 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.
.SP 2
13. On going through the facts of the case in
the decision cited above, I find that the complaint in
that case was filed by a second wife whose marriage
with the accused/husband was not strictly legal in view
of an earlier marriage of the accused/husband. ( Hers
was also a second marriage) Despite this fact, the
Supreme Court held that the alleged husband is covered
by section 498A IPC, giving a liberal interpretation to
the term marriage. Thus it follows that as per the
dictum laid down in the said case, a complaint filed
against the husband by such a second wife whose
marriage is not legally valid is maintainable under
section 498A IPC. If then, can such a second wife,
supposing she is guilty of inflicting cruelty on the
legally-wedded wife of her alleged husband be exonerated
from a charge under the same section that too, on the
ground of an invalid marriage?
14. Certainly not. Nothing confuses my thought
now. I have no doubt that it will be unjust, unfair,
illogical and inequitable if I may hold otherwise. When
Law and Precedents water down the stiffness of an
expression in aid of a victim-woman, I cannot even make a
wild guess that the same expression will be kept harder
and solid for protecting an erring-woman. Law cannot
blow hot and cold. Precedents can neither play hide and
seek. If a second wife whose marriage is not strictly
legal commits matrimonial cruelty on the legally-wedded
wife of her alleged husband, she cannot be allowed to
wriggle out of the criminal liability under section 498A
IPC on the ground of invalidity of marriage.
15. Before I proceed any further, I shall look
at the issue from another angle also. A glance through
the facts of this case will be necessary here. As per
the allegations in this case, the second marriage of the
petitioners was solemnised at the instigation of the
husbands relatives. They were residing together as
husband and wife to the knowledge of all concerned. Over
more than half of the husbands property was allegedly
assigned in favour of the second wife, treating her as
his own wife. It was the third accused who is the
brother-in-law of the husband who executed the assignment
deed in favour of the second petitioner, on the strength
of a power of attorney executed by the husband in favour
of him. The assignment was effected allegedly as
instigated by the second wife. The property conveyed to
the second wife was the one in which the legally-wedded
wife was residing. It prima facie appears from the
allegations in the complaint that for all purposes the
second wife was treated as none other than the wife
herself.
16. So, what could be the nature of the
relationship between such a second wife and husband?
Firstly, a second wife who is accepted as wife by the
husband and relatives gets recognised as such by friends
and society also. She then, as a `wife starts exploring
under the shade of matrimonial shelter, the warmth of
consortium. She experiences from her husband, the
intensity of emotional security. She shares his bed,
bears his child. As she becomes the mother of his child,
she treasures an everlasting bond which is inbred through
the blood of their child. She handles also the strength
of her husbands financial support. She thus enjoys
everything that his former legally-wedded wife once
possessed and enjoyed in her status as a wife at the
matrimonial home. Is not such a woman anybody to him?
17. It is significant in this context to bear in
mind, some of the probable consequences which are caused
by the entry of a second wife to the matrimonial home. I
do keep in mind, the inescapable anguish which the second
wife caused by permanently destroying all possible
chances of a re-union. I also understand, the
ever-lingering and burning ache of the havoc that a
second wife might have inflicted on a
once-upon-close-knit family which was bound by a legal
marriage. I am also reluctant to overlook what she
unmindfully overturned over night for the children (if
any) who may be totally innocent in the whole interlude.
If as a matter of fact, the second wife played a willing
role in the second marriage, ignoring all the painful
consequences, she along with her husband committed on a
legally-wedded woman nothing short of an offence of
matrimonial cruelty. Can such a woman be allowed to
escape?
18. No. I am of strong view that non-existence
of a strictly legal marriage cannot be made a ground for
an offending second wife to run away. The invalidity of
the marriage can under no circumstances be granted as a
licence to her to harass none other than the
legally-wedded wife. She shall not be allowed to
skip-out of the strong grip of law. I do not think that
arms of Law are that slender and weak. Those can
certainly hold within the fold, such erring woman as
well. A court cannot remain divinely silent to forgive
her or calmly shut its eyes to this tragic situation,
assert and justify that a second wife is not precisely
referred to in the section and hence she is not covered
by section 498A IPC. The legal system in this country
cannot shy away and hide itself under the mask of an
evasive explanation that a second wife cannot be teated
as a `relative as legislature did not specifically
include the second wife in section 498A etc.
19. A court cannot allow the guilty to leave
unhurt. Court cannot lightly blame the skill of
draftsmanship for that purpose. Court cannot plead
helplessness or extend an apology to the society that the
second wife is not specifically brought under section
498A of IPC. Society has faith in court. Legislature
has confidence in court. Both have great expectations.
The court cannot fail. It shall not. It is wise to
remember that framers of law cannot foresee all sets of
facts which may arise in each case and include all those
in a particular provision. Even if the framers had in
their minds a particular situation and they intended to
include the same in the provision, it may not always be
possible to do it for various reasons. It can also
happen that in some cases legislature would have
knowingly left open the expression undefined leaving it
to the courts to define it in a given set of facts,
keeping in mind the object to be achieved by the
provision. Courts have therefore to make a serious
effort to understand the import of the provision,
consistent with the intention of the legislature and
interpret the same.
20. While doing so, I find that the main
purpose, as discernible from section 498A IPC is to deter
a person –whether it be a man or a woman– from
inflicting cruelty on a woman who is considered as a
wife. Legislature intended that on account of the
marital relationship, no woman shall be subjected to any
harassment either physical or mental of the nature stated
in the section. The introduction of the section no
doubt, is a visible step paced by the legislature towards
eradication of evil of domestic violence, being quite
wakeful of the social conditions of a married woman in
this country. Section 498A IPC is introduced into the
statute to curb the social evil of matrimonial cruelty
which a woman is made to suffer because of her marriage
and her status as a wife. So, whatever be the gender of
the offender, he or she is bound to meet the consequences
under section 498A IPC.
21. When cruelty to a married woman became
rampant and widespread in our society, legislature
thought it fit to introduce section 498A into the Indian
Penal Code. It became necessary for law to protect women
who suffer the brunt of matrimonial cruelty. One cannot
forget the unclad reality that an ordinary Indian girl is
brought up in the family by inducing into her, a greater
sense of responsibility as a life-partner than even that
of a man. She grows up as a woman, hearing the
preachings of grand-parents, parents, and other elders
that she is bound to preserve the sacred matrimonial-tie
by paying whatever price it may command. Fingers are
often pointed to the ideal of Bhoomi Devi (Goddess of
Earth) as a symbol of an Indian woman who humps on her
palms patiently, the entire weight of the whole world.
22. A girl in the family is normally disciplined
at home to bear any hardship and suffering that may shoot
up in the matrimonial life with high degree of patience,
courage and strength for maintaining the matrimonial bond
strong and firm. Her role in life as a wife is
considered to be greater than that of a man as a husband
and she is the one who is expected to make sacrifices to
preserve the marriage for the sake of her children and
family. This is the culture of this country. This is
the tradition of this land. This is the concept which
runs through every vein of Indian society. It is
therefore quite common to drive a woman back to the
matrimonial home, either slighting or ignoring the
physical and mental hurt which she must have suffered,
reminding her of the future of the children, with the
oft-repeated advice: think of your children! It cannot
be disputed that in certain families in our society,
elders even forewarn and prepare a girl to accept a
beating or two from her husband as an ordinary tear and
wear of family life. Neither a man nor woman of such a
family considers it as a sin.
23. Thus, when a girl who is brought up in
normal Indian conditions and her character is groomed in
the traditional way and when she makes an attempt to live
a life for the family and the children by making many
sacrifices, she hardens herself in the process to put up
with any form of matrimonial cruelty. She learns to
endure major part of the injury, whether physical or
mental in her own taught-way. She accepts it as part of
the solemn duty of a wife believing that those are all
for the sake of a sacred purpose. She thus gets equipped
herself to suffer any form of matrimonial cruelty without
raising much of a protest because she knows that a
married woman is expected even by the members of a
traditional Indian family and also the society to
silently languish her grievances. It may not be an
exaggeration that in certain cases, her voice and wail go
unheard even by her own kith and kin.
24. It is in this context that Legislature
rightly sensed the gravity of the problem of married
women in this country and came up to the rescue of such
women of our society who genuinely suffer. In the above
scenario of all what I have discussed, I find that
Legislature would not have intended that to unfetter a
woman of this country from matrimonial cruelty, she
should plead and prove before court in the strict legal
terms, the legality of the matrimonial relationship which
exists between the man and woman who are involved in the
case. I also find it extremely difficult to hold that
the legislature did not intend to include a second wife
in section 498A IPC as a person not related to the man by
marriage. I cannot ignore all the unveiled realities
encircling the issue and make an unrealistic approach
while interpreting the relevant expression.
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 lie against her.
26. Coming to the facts of this case, I find
that there are cogent assertions in the complaint to
proceed against the petitioners under section 498A and 34
of IPC. The court can go only by the allegations
disclosed from the records at this stage. It is
well-settled that a meticulous or a forensic search into
such allegations is not what is contemplated at the stage
of taking cognizance. If the court is prima facie
satisfied that the facts disclosed from the records on
the face of it constitute an offence, the court can
proceed against the accused for such offence. The
records in this case support such prima facie
satisfaction and therefore, the court below acted only
well within its jurisdiction in taking cognizance of
offences under section 498A and 34 of IPC. I will not
interfere. I cannot also.
The petition is dismissed.