Bombay HC: No law that says if relatives away, cruelty cannot be met out

A division bench of justices was hearing a petition filed by Shafi Kazi and his family members seeking to quash the FIR registered on April 4, 2019 against them by his ex-wife

The Bombay High Court refused to quash the First Information Report (FIR) under section 498A (subjecting a woman to cruelty by her husband and his relatives) and held, "no position in law that if relatives do not stay in the same house, cruelty cannot be meted out."

A division bench of justices Nitin Jamdar and NR Borkar was hearing a petition filed by Shafi Kazi and his family members seeking to quash the FIR registered on April 4, 2019 against them by his ex-wife.

She alleged that after the marriage in 2010 her brother-in-law and his wife who stayed in Dubai instigated her husband against her and her mother-in-law sent her back to her maternal home and took all her ornaments. She said when she delivered a baby, all the expenses were borne by her parents and her in-laws and her husband refused to pay any money.

She has stated in the FIR that her husband sent her three divorce notices and assumed that he got divorced. On these allegations of misappropriation of the property, demands of dowry and mental cruelty, the FIR was lodged under section 498 (enticing or taking away or detaining with criminal intent a married woman), 498A, 406 (punishment for criminal breach of trust) read with 34 (acts done by several persons in furtherance of common intention) of the Indian Penal Code.

The counsel for the husband and his family argued that divorce and settlement have already taken place therefore ingredients in the FIR are not made out. However, the advocate for the lady contended the divorce took place between the parties on 24 March 2019 and the allegations in the FIR are for the period prior to the divorce.

The court said, "By reading of the FIR it cannot be said that ingredients of section 498A are absent. No absolute position of law is shown that if the relatives do not stay in the same house, or in proximity, section 498A of the Code is not attracted. This FIR is not a case of a vague general statement of only naming all relatives."

The order read, "The FIR assigns a specific role to each of the petitioners and how their action indirectly and collectively reflected mental cruelty. In this case, there are specific assertions that cruelty was meted out even by members of the family by instigating others to meet out cruelty to the woman from time to time calling them on telephone" and refused to quash the FIR.