Wednesday, September 15, 2010

GF/concubine can't be prosecuted for cruelty: SC

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GF/concubine can't be prosecuted for cruelty: SC

15 sep 2010

New Delhi: A girl friend, concubine or live-in-partner cannot be prosecuted for cruelty by an estranged wife though the husband and other family members can be made liable for the offence, the Supreme Court has held.

A Bench of Justices Altamas Kabir and AK Patnaik in a judgement said that under Section 498A, it is the husband and his other relatives who can be prosecuted but not the girl friend, live-in partner or concubine even if they are staying with him.

The Bench passed the judgement while upholding an appeal filed by Sunita Jha, challenging the cognizance taken by Sub-Divisional Judicial Magistrate, Dumka, Jharkhand, under Section 498A IPC on the basis of a complaint filed by estranged wife Asha Rani.

Rani had filed the case not only against her husband Mukund Chandra Pandit but also against Sunita who was living with him without marrying him. Rani argued that even though Sunita was not married, yet by her conduct of staying with Pandit they were deemed to be husband and wife. The sessions court dismissed Sunita's plea for quashing of the criminal case and the Jharkhand High Court also refused to interfere with the decision.

The High Court took the view that since Sunita was living with the accused husband of the complainant, she must be deemed to have become a family member of Mukund Chandra Pandit for the purpose of Section 498A IPC. Aggrieved, Sunita appealed in the apex court. Interpreting the provision, the apex court said that under Section "498A, 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."

The apex court recalled its earlier ruling in the U Suvetha's case that neither a girl friend nor a concubine is a relative of the husband within the meaning of Section 498A IPC since they were not connected by blood or marriage to the husband.
"We agree with the submissions made on behalf of the appellant that the learned Judge of the High Court committed an error in bestowing upon the Appellant the status of wife and, therefore, a member of Mukund Chandra Pandit's family.
"The doctrine of acknowledgement would not be available in the facts of this case. No doubt, there is direct allegation against the appellant of cruelty against the Respondent No.2, Asha Rani Pal, but as indicated in U Suvetha's case, the same would enable the Respondent No.2 to proceed against her husband under Section 498A I.P.C. and also against the appellant under the different provisions of the Hindu Marriage Act, 1955, but not under Section 498A I.P.C.," Justice Kabir, writing the judgement, said.

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