Man can be convicted under Section 498-A of RPC even if the marriage is void : High Court of Jammu and Kashmir

HIGH COURT OF JAMMU AND KASHMIR AT JAMMU THROUGH VIRTUAL MODE) CRMC 560 2018 CrlM No. 1496 2020 Reserved on 15.12.2020 Pronounced on 23.12.2020 Through : Mr. Sandeep Bhat Advocate Through : Mr. Aseem Sawhney AAG Karnail Chand and others State of J&K and another Coram: HON’BLE MR. JUSTICE SANJAY DHAR JUDGE Through the medium of instant petition the petitioners have challenged FIR No. 31 2018 for offence under Section 498 A RPC registered with Police Station Women Cell Udhampur. Briefly stated the facts giving rise to filing of this petition are that on 24.07.2018 respondent No.2 complainant presented a complaint before the Police Station Women Cell Udhampur alleging therein that about two years ago she had entered into wedlock with one Kuldeep Kumar and out of the said wedlock one son was born. It was further alleged in the complaint that her husband and his relatives who happen to be the petitioners herein used to harass and subject her to cruelty and that she was beaten up and thrown out of her matrimonial home. It was also alleged that the husband of respondent No.2 complainant is working in the Army but she is not being paid any maintenance. The allegations regarding demands of dowry items like CRMC 560 2018 Refrigerator Almirah Cooler and Car were also leveled against the petitioners and husband of respondent No. 2 complainant. It was also alleged that about two months back respondent No.2 complainant was thrown out of her matrimonial home and that she is being subjected to cruelty by her husband and the petitioners herein. On the basis of the aforesaid complaint impugned FIR came to be registered and the investigation of the case was set into motion. The petitioners have challenged the impugned FIR primarily on the ground that the accused Kuldeep Kumar is a married person and there was no scope for him to get married second time during the life time of his first wife the petitioner No.4 herein. It is contended that since the respondent No.2 complainant is not the legally wedded wife of accused Kuldeep Kumar as such offence under Section 498 A RPC is not made out against the petitioners. It is pertinent to mention here that petitioners No.1 and 2 happen to be the parents of accused Kuldeep Kumar and petitioner No.3 happens to be his sister. Petitioner No.4 who claims to be the legally wedded wife of accused Kuldeep Kumar has not been named as an accused in the subject FIR and she has challenged the subject FIR on behalf of her husband who is stated to be working with Army at some outstation location. The respondents have resisted the petition by filing a response thereto along with an application for vacation of the interim order passed by this Court whereby investigation of the impugned FIR has been stayed. In their response it is averred that during the investigation of the case it has come to fore that respondent No.2 complainant was a divorcee and out of her earlier marriage with one Yash Pal a male baby was born. It was also found that respondent No.2 complainant had got remarried to accused Kuldeep Kumar and that she CRMC 560 2018 was being subjected to harassment and mental torture on account of demand for dowry by the petitioners. It was also found that on 28.06.2018 there was exchange of hot words between petitioners No.2 and 3 and respondent No.2 complainant whereafter she was thrown out of her matrimonial home. Thus according to the prosecution offence under Section 498 A RPC stands established against the petitioners. I have heard learned counsel for the parties and perused the record of the The primary argument of learned counsel for the petitioner is that accused Kuldeep Kumar the claimed husband of respondent No.2 was a married person having two sons out of his wedlock with petitioner No.4. The petitioners have placed on record documents in support of this assertion and in fact the investigating agency has also found that petitioner No.4 is the legally wedded wife of accused Kuldeep Kumar and that the said marriage was subsisting at the time when the said accused entered into wedlock with respondent No.2. According to the learned counsel as per Hindu law a person is prohibited from solemnizing second marriage during the life time of his first wife and in case he does so the second marriage would be void abinitio. It is contended that even if the contention of respondent No.2 that she had entered into wedlock with Kuldeep Kumar is taken to be correct still then neither Kuldeep Kumar nor his relatives can be said to have committed offence under Section 498 A RPC as the accused Kuldeep Kumar is not legally recognized husband of respondent No.2. CRMC 560 2018 Per contra learned counsel for the respondents has submitted that even if it is assumed that the accused Kuldeep Kumar was already married at the time when he entered into wedlock with respondent No.2 still then for the purpose of Section 498 A RPC his status qua respondent No.2 is that of her husband. Therefore any harassment or cruelty in connection with demand of dowry meted out to respondent No.2 by accused Kuldeep Kumar or his relatives would constitute an offence under Section 498 A RPC. In order to understand the controversy at hand it would be appropriate to notice the provision contained in Section 498 A RPC which reads as under: “498A. Husband or relative of husband of a woman subjecting her to crueltyWhoever 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”. From a perusal of the aforesaid provision it is clear that for making out an offence under Section 498 A RPC it is to be shown that the perpetrator of cruelty upon a woman must be either her husband or relative of her husband. The Supreme Court in the case of Reema Aggarwal vs Anupam and others 3 SCC 199 had an occasion to consider the question as to who would be covered by the expression “husband” for attracting Section 498 A IPC which is in pari materia with Section 498 A of the J&K State RPC. The Court while answering this question observed as under: “The concept of "dowry" is intermittently linked with a marriage and the provisions of the Dowry Act apply in relation to marriages. If the legality of the marriage itself is an issue further legalistic problems do arise. If the validity of the CRMC 560 2018 marriage itself is under legal scrutiny the demand of dowry in respect of an invalid marriage would be legally not recognizable. Even the purpose for which Sections 498A and 304B IPC and Section 113B of the Indian Evidence Act 1872were introduced cannot be lost sight of. Legislations enacted with some policy to curb and alleviate some public evil rampant in society and effectuate a definite public purpose or benefit positively requires to be interpreted with certain element of realism too and not merely pedantically or hyper technically. The obvious objective was to prevent harassment to a woman who enters into a marital relationship with a person and later on becomes a victim of the greed for money. Can a person who enters into a marital arrangement be allowed to take a shelter behind a smokescreen to contend that since there was no valid marriage the question of dowry does not arise Such legalistic niceties would destroy the purpose of the provisions. Such hairsplitting legalistic approach would encourage harassment to a woman over demand of money. The nomenclature dowry does not have any magic charm written over it. It is just a label given to demand of money in relation to marital relationship. The legislative intent is clear from the fact that it is not only the husband but also his relations who are covered by Section 498A. Legislature has taken care of children born invalid marriages. Section 16 of Marriage Act deals with legitimacy of children of void and voidable marriages. Can it be said that legislature which was conscious of the social stigma attached to children of void and voidable marriages closed eyes to plight of a woman who unknowingly or unconscious of the legal consequences entered into the marital relationship. If such restricted meaning is given it would not further the legislative intent. On the contrary it would be against the concern shown by the legislature for avoiding harassment to a woman over demand of money in relation to marriages. The first exception to Section 494 has also CRMC 560 2018 some relevance. According to it the offence of bigamy will not apply to "any person whose marriage with such husband or wife has been declared void by a Court of competent jurisdiction". 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 feigned status of husband subjects the woman concerned to cruelty or coerce her in any manner or for any of the purposes enumerated in the relevant provisions Sections 304B 498A whatever be the legitimacy of the marriage limited purpose of Sections 498A and 304B IPC. Such an 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 cohabitate with such woman in the purported exercise of his role and status as husband is no ground to exclude them from the purview of Section 304B or 498A IPC viewed in the context of the very object and aim of the legislations introducing those provisions”. The aforesaid view was reiterated and reaffirmed by the Supreme Court in the case of A. Subash Babu vs State of A.P and another 7 SCC 616. The Court while setting aside the order of the High Court whereby proceedings pending before the Magistrate under Section 498 A IPC were quashed on the ground that the marriage which was subject matter of that case was void as the complainant was not the wife of the accused observed as “17. In view of firm and clear law laid down on the subject this Court is of the confirmed view that the High Court was not justified at all in quashing the proceedings initiated against the appellant under Section 498A of the Code on the ground that the respondent no. 2 was not wife within the meaning of Section CRMC 560 2018 498A of the IPC and was not entitled to maintain complaint under the said provision. The question therefore which arises for consideration of the Court is whether the said finding recorded by the High Court can and should be set aside in the present appeal which is filed by the husband. It was argued by the learned Counsel for the appellant that quashing of proceedings with reference to offence punishable under Section 498A of Indian Penal Code is neither challenged by the State Government nor by the original complainant before this Court and the same having attained finality the same cannot be disturbed in an appeal filed by the husband appellant in which grievance is made regarding non grant of relief in full by the High Court. 18. This Court does not find any substance in the above mentioned argument of the learned Counsel for the appellant. The law declared by this Court in case of Reema Aggarwal was binding on all Courts including the learned Single Judge of High Court of A.P. who decided the present case in view of salutary provisions of Article 141 of the Constitution. The learned Single Judge of the High Court could not have afforded to ignore the law declared by this Court in Reema Aggarwal while considering the question whether proceedings initiated by the respondent no.2 for commission of offence punishable under Section 498 A RPC 498A of IPC should be quashed or not. The High Court has completely misdirected itself in quashing the proceedings for the offence punishable under Section 498A of IPC. There is no manner of doubt that the finding recorded by the High Court that the respondent no. 2 is not the wife within the meaning of Section 498A of the Indian Penal Code runs contrary to law declared by this Court in case of Reema AggarwalCrimes 177and Babita Sumanprakash Soni vs. State of Gujrat and another to canvas the point that it is only a legally wedded wife and her relatives who can be prosecuted for offence under Section 498 A RPC. CRMC 560 2018 In Baby Devi‟s casethe issue before the Patna High Court was pertaining to maintenance of petitioner therein who was found not entitled to the same on account of the fact that her marriage was not a valid marriage being second marriage. In the said case the issue was not discussed by the High Court in the context of provisions contained in Section 498 A IPC. The said judgment is therefore not applicable to the instant case. In Babita Sumanprakash Soni‟s case the Supreme Court has held that neither a girl friend nor a concubine would come within the definition of relative of the husband since they were not connected by blood or marriage to the husband. In the instant case we are dealing with the situation of a man qua a woman with whom he has entered into second marriage during the subsistence of his first marriage. We are not concerned with the issue as to whether a girlfriend or a concubine would come within the definition of relative of the husband. The ratio laid down in the said case is therefore not applicable to the instant case. So far as the judgment of Supreme Court in Shivcharan Lal‟s case supra) is concerned in the said judgment it has been concluded that a person cannot be convicted under Section 498 A IPC if his marriage with a woman is void. However the judgment of the Supreme Court in Reema Aggarwal‟s case supra) as reiterated in A. Subash Babu‟s case being later in point of time would hold the field and the ratio laid down in Shivcharan Lal‟s case supra) would be treated as impliedly overruled. From the aforesaid discussion this Court has no hesitation in holding that even if respondent No.2 is not the legally wedded wife of accused Kuldeep Kumar still then petitioner Nos. 1 to 3 who happen to be the relatives of the accused Kuldeep Kumar as also accused Kuldeep Kumar can be prosecuted for CRMC 560 2018 an offence under Section 498 A RPC on the basis of allegations made by respondent No.2 in the subject FIR. The allegations made in the subject FIR prima facie constitute an offence under Section 498 A RPC against the accused Kuldeep Kumar and petitioner Nos. 1 to 3 as such the investigation which is still at its infancy cannot be throttled by quashing the subject FIR. For the foregoing reasons I do not find any good ground to interfere in the investigation of the impugned FIR. The petition is found to be without any merit. The same along with connected application stands dismissed. Interim order of stay of proceedings of the impugned FIR shall stand vacated. Judge Sanjay Dhar) Sanjeev P S Whether order is speaking: Yes Whether order is reportable: Yes 

Summary: A woman can file an FIR against a man under 498-A RPC for offences committed even if she is not a legally recognized wife. This was decided by the High court Of Jammu and Kashmir by Hon’ble Justice Sanjay Dhar in the case of Karnail Chand and others vs. State of Jammu and Kashmir [Criminal Miscellaneous Petition 560 of 2018].   The facts of the case are that the complainant who is the respondent here had filed an FIR against a man named Kuldeep Kumar. She alleged that she married him two years back and since then has been subjected to cruelty by his relatives. Further, she asserted that she wasn’t paid maintenance for that duration of time. In response to this, a petition was filed by the relatives of the man to quash the FIR stating that there existed no legal relationship of marriage between the two as the man was already married.    The court observed that during the investigation it was ascertained that the woman was indeed tortured and was thrown out of the house. However, it also took into consideration the evidence presented by the petitioners validating his marriage with another woman before he entered into a wedlock with the complainant. Thereby the second marriage was held void ab initio as it violated the conditions for a valid marriage under the Hindu Marriage Act,1955.   However, concerning the applicability of Section 498A to the case at hand, the court referred to the reasoning provided by the Supreme Court in the case Reema Aggarwal vs Anumpam and Others, (2004) 3 SCC 199, wherein it was observed that “…the purpose for which Sections 498A and 304B-IPC and Section 113B of the Indian Evidence Act, 1872 were introduced cannot be lost sight of. Legislations enacted with some policy to curb and alleviate evil rampant in society require to be interpreted with a certain element of realism and not hyper technically.”   After referring to the emphasis laid down on the objective behind the legislation, the matter was decided in favor of the complainant. The court stated that there even when the complainant does not strictly fall within the meaning of wife Section 498A of Ranbir Penal Code, it must be noted that the person had entered into a marital arrangement with the complainant. This is sufficient to cover him under the definition of ‘husband’ as contained in Section 498-A RPC. The FIR and the grounds of conviction were thus considered to be legitimate.   The court dismissed the application to quash the FIR and found it incorrect to interfere with the investigations.