@JUDGMENTTAG-ORDER
K. Hema, J.@mdashAn 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 u/s 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 husband''s family as accused 3 to 6 alleging offences under Sections 498A, 494
and 34 of IPC before the Magistrate''s Court. The complaint was forwarded by the lower court to Police u/s 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 offences u/s 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 u/s 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 u/s 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:
Section 498-A: Husband or relative of the 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-
(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"".
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 Webster''s 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 u/s 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 u/s 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 lawmaker behind introduction of the provision,
discerning the object sought to be achieved and the mischief sought to be supressed 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
regidity of concept of marriage. For example, u/s 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"": u/s 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 u/s 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 Aggarwal Vs. Anupam and Others, . 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 u/s 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 u/s 498A IPC as the husband of the complainant.
12. It is worthy to extract the relevant portion from Reema Aggarwal Vs. Anupam and Others, . as follows:
''The concept of marriage to constitute the 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 S 304B or
498A IPC, viewed in the context of the very object and aim of the legislations introducing those provisions"".
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 u/s 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 u/s 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 husband''s relatives. They were
residing together as husband and wife to the knowledge of all concerned. Over more half of the husband''s 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
assigned 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 husband''s 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 a allowed to escape.
18. No. I am of the 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 treated as a ''relative'' as Legislature
did not specifically include the second wife in Section 498A etc.
19. A Court 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 u/s 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
placed 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 u/s 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 grandparents, 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 form. 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
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 u/s 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 u/s 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 u/s
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 u/s 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 u/s 498A and 34 of
IPC. I will not interfere. I cannot also.
The petition is dismissed.
