IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR THURSDAY, THE 12TH NOVEMBER 2009 / 21ST KARTHIKA 1931 Crl.MC.No. 4262 of 2008() -------------------------------------- C.C. NO.974/2003 OF THE ADDL. CHIEF JUDICIAL MAGISTRATE COURT, ERNAKULAM. ........... PETITIONER(S): ------------------------ K.K.JAIPAL, AGED 42 YEARS, KRISHNA BHAVAN, POONITHURA P.O., ERNAKULAM. BY ADV. MR.SAJEEV.T.P. RESPONDENT(S): -------------------------- 1. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. S.H.O., HILL PALACE POLICE STATION THRIPUNITHURA. *ADDL. R3 IS IMPLEADED 3. JAYASUDHA L., D/O. LEELA KRISHNAN, AGED 31 YEARS, H. NO.33, FATHIMA NAGAR, VALSARA VAKKOM, CHENNAI. *ADDL. R3 IS IMPLEADED AS ADDL. R3 AS PER ORDER DTD. 12.11.08 IN CRL.MA. NO.6303/2008. PUBLIC PROSECUTOR MR.S.U.NAZAR THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 12/11/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: tss M.SASIDHARAN NAMBIAR,J. ------------------------------------------ CRL.M.C.NO. 4262 OF 2008 ------------------------------------------ Dated 12th November 2009 O R D E R Petitioner is the accused and third respondent, the de facto complainant in C.C.974/2003 on the file of Additional Chief Judicial Magistrate, Ernakulam taken cognizance for the offence under Section 498 A of Indian Penal Code on Annexure-2 final report submitted by Sub Inspector of Police, Hill Palace police station, Tripunithura. Crime No.150/2002 was registered on a complaint dated 14/5/2002 filed before Additional Chief Judicial Magistrate, Ernakulam by the third respondent and sent for investigation by the learned Magistrate on 14/5/2002. Annexure-A1 FIR was registered on 22/5/2002. Case of the third respondent in the complaint was that marriage of the petitioner with third respondent was solemnized at Sreekrishna Temple, Guruvayur on 24/10/2001 and from the very first day she was being treated with cruelty and he informed the third respondent that an appointment is Crmc 4262/08 2 fixed with a psychiatric as he was advised by the friends that mental condition of the wife is to be ascertained and petitioner and her in-laws were furious for the failure of third respondent to bring sufficient ornaments along with her and by started compelling her to sell the property of her parents at Madras and to entrust the money to the petitioner and mother-in-law demanded that gold ornaments owned by third respondent are to be given to her and when she refused she started to ill-treat third respondent. It is contended that as the ill-treatment was unbearable, she informed her mother who reached the matrimonial home on 8/12/2001 and on the very next day third respondent showed signs of pregnancy and petitioner took third respondent along with her mother to the hospital to confirm pregnancy and petitioner was always suspecting chastity of third respondent alleging that she has illicit connection with her cousin brother. It was alleged that even the father of the child in her womb is not the petitioner and third respondent and her mother were taken to uncle’s house at Pachalam and was brought back only on 17/12/2001 and thereafter on 18/12/2001 making her believe that the doctor had advised to take Crmc 4262/08 3 her scan, she was taken to Well Care Hospital, Vyttila and was subjected to scanning and she was thereafter taken to her aunt's house at Toll and petitioner telephoned the mother of third respondent that he is not the father of the fetus in the womb and he does not want to continue the relationship and thereafter mother contacted the father at Madras, who advised them to go to the house of petitioner and when they reached there, they were abused and did not permit to reside in the house and therefore, they were compelled to go to Madras and these acts amount to cruelty punishable under Section 498 A of Indian Penal Code. Allegation was that apart from the petitioner, his mother and brother are also liable for the offence. Sub Inspector after investigation submitted Annexure-2 final report only as against the petitioner absolving his mother and brother. Learned Magistrate has taken cognizance of the offence. This petition is filed under Section 482 of Code of Criminal Procedure to quash the proceedings contending that continuation of the proceedings is only an abuse of process of the court. 2. Though originally the de facto complainant was not impleaded, she was subsequently impleaded as Crmc 4262/08 4 third respondent and notice was sent to her in all known address. When notice could not be served personally, publication was taken and it was published in a newspaper and still third respondent did not appear. 3. Learned counsel appearing for the petitioner and learned Public Prosecutor were heard. 4. Learned counsel appearing for the petitioner pointed out that O.P.75/2002 was filed before Family court, Ernakulam by the petitioner seeking a decree declaring his marriage with third respondent null and void and the complaint, based on which the crime was registered, was filed thereafter and even though third respondent contested the O.P., based on medical evidence and two reports on examination of DNA, one by Rajiv Gandhi Institute of Bio-Technology and the other by CDFC, Hyderabad, which establish that petitioner is not the biological father of the child born to third respondent and finding that third respondent had consummated before her marriage with the petitioner, marriage was declared null and void and petitioner is not the husband of third respondent and therefore, petitioner cannot be prosecuted for an offence under Section 498 A of Indian Penal Code. Crmc 4262/08 5 Argument is that only if there is a legal marriage, the petitioner could be the husband and when by Annexure-3, judgment Family court declared the marriage of the petitioner and third respondent null and void, there is no marriage and when there is no marriage, petitioner is not the husband of the third respondent and therefore, petitioner cannot be prosecuted under Section 498 A of Indian Penal Code. 5. Learned counsel also pointed out that O.P.75/2002 was filed before Family court, Ernakulam seeking a decree for declaration that the marriage is null and void on 21/1/2002 and third respondent lodged the complaint before the learned Magistrate only on 14/5/2002 and Annexure-A3 judgment shows that after the marriage on 24/10/2001 third respondent had gone to Madras on 5/11/2001 and returned back only on 18/11/2002 and this aspect was suppressed in the complaint. It is also pointed out that fact that a petition for divorce was filed by the petitioner and it was pending before the Family court, Ernakulam was also not disclosed in the complaint and when Family court found that case of the third respondent is not true and petitioner is not responsible for the pregnancy of third respondent and Crmc 4262/08 6 she was in fact pregnant not from the petitioner but from somebody else, that too prior to the date of marriage, allegation about harassment and cruelty cannot be accepted. 6. Learned Public Prosecutor submitted that the statement of third respondent and her mother do not disclose either the pendency of the petition before the Family court or the fact that third respondent had gone to Madras within ten days of the marriage and returned only on 18/11/2001. 7. Section 498 A of Indian Penal Code provides that whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment with a term which may extent to a period of three years in addition to fine and cruelty means any willful conduct which 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 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 Crmc 4262/08 7 any person related to her to meet such demand. Husband is not defined in the Code. 8. The question is whether husband could only be the person who contracted a legal marriage with a woman. A two Judge Bench of the Apex court in Reema Aggarwal v. Anupam (2004 (2) KLT 822 (SC)) considered the question in detail. After considering the purpose of enactment it was held that it would be appropriate to construe the expression husband to cover a person who enters into marital relationship and under the colour of such proclaimed or reigned status of husband subjects the woman concerned to cruelty or coerces her in any manner or for any of the purposes enumerated in the relevant provisions --Ss.304B or 498 A, whatever be the legitimacy of the marriage itself for the limited purpose of Ss.498 A and 304 B of Indian Penal Code. Such interpretation known and recognized as purposive construction has to come into play, in a case of this nature. 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 Crmc 4262/08 8 purview of Section 304 B or 498 A of Indian Penal Code, viewed in the context of the very object and aim of the legislations introducing those provisions. 9. A three Judge Bench of the Apex court in Shivcharan Lal Verma & Anr. V. State of M.P (JT 2002 (2) SC 641) while interpreting Section 498 A in a case where prosecution alleged that during the life time of first wife Kalindi, the husband married for the second time Mohini but after marriage both Kalindi and Shivcharan tortured Mohini and as a result thereof, she ultimately committed suicide by burning herself it is held that when the marriage of husband of Kalindi with Mohini, was during the subsistence of valid marriage with Kalindi it is null and void and therefore, a conviction under Section 498 A of Indian Penal Code is not sustainable. It was held, “One whether the prosecution under S.498A can at all be attracted since the marriage with Mohini itself was null and void, the same having been performed during the lifetime of Kalindi. Second, whether the conviction under S.306 could at all be sustained in the absence of any positive material to hold that Mohini committed suicide Crmc 4262/08 9 because of any positive act on the part of either Shiv Charan or Kalindi. There may be considerable force in the argument of Mr.Khanduja, learned counsel for the appellant so far as conviction under S.498A is concerned, in as much as the alleged marriage with Mohini during the subsistence of valid marriage with Kalindi is null and void. We, therefore, set aside the conviction and sentence under S.498 A of the Indian Penal Code.” 10. This decision was considered by a later two Judge Bench of the Apex court in Suvetha v. Inspector of Police (2009 (2) KLT 686 (SC)). After noting the divergent views in Reema Aggarwal's case (supra) it was held that on the facts of that case, it is not necessary to go into the controversy as to whether Reema Aggarwal's case (supra) was correctly decided or not and their Lordships would assume that the term husband would bring within its fold a person who is said to have contracted a marriage with another woman and subjected her to cruelty. 11. In the light of the three Judge Bench decision it can only be held that when the marriage of the petitioner with third respondent was declared null Crmc 4262/08 10 and void at the inception, petitioner cannot be the husband so as to attract an offence under Section 498 A of Indian Penal Code. If that be so, on that ground alone the prosecution is to be quashed. 12. On the facts also it is clear that complaint was filed by third respondent, without disclosing true facts. Fact that when the complaint was filed, petitioner had already approached the Family court to declare the marriage null and void was suppressed in the complaint. Complaint proceeds as if third respondent was living with petitioner from the date of marriage on 24/10/2001 till 18/12/2001, when it is alleged that she was not allowed to enter into the house and therefore, along with mother third respondent had gone to her parental home at Madras. Annexure-3 judgment of the Family court establishes that based on the evidence of the doctor who subjected the petitioner for scanning on 18/12/2001 at Well Care Hospital, Vyttila as stated in the complaint itself, it was fond that the consummation was prior to the marriage. Annexure-3 judgment also shows that report of examination of DNA test, both by Rajiv Gandhi Institute of Bio-Technology and CDFC, Hyderabad establish that Crmc 4262/08 11 petitioner is not the biological father of the child born to third respondent, which justifies the case of the petitioner that third respondent had illicit relationship with another person prior to the marriage of third respondent with the petitioner. Annexure-3 judgment shows that it was admitted by the third respondent before the Family court that without the consent or information of the petitioner she had gone to Madras on 5/11/2001 and returned back only on 18/11/2001. It is to be born in mind that marriage was on 24/10/2001 and third respondent left the matrimonial home on 5/11/2001 and returned back only on 18/11/2001 and alleged cruelty was till 18/12/2001, the date on which she was taken to Well Care Hospital for scanning. Facts would definitely shows that prosecution is only an abuse of process of court which is not in the interest of justice to continue. Petition is allowed. C.C.974/2003 on the file of Additional Chief Judicial Magistrate, Ernakulam is quashed. M.SASIDHARAN NAMBIAR, JUDGE. uj.