Sunday 2 February 2014

Whether offence u/s 498A of IPC is made out even though there is no valid marriage?



The

learned counsel for the petitioner has invited my



attention to the decision of a three Judges' Bench of the

Supreme Court in Shivcharan Lal Verma & Anr. v. State

of M.P. (2002 (2) Crimes 177 SC =JT (2002)2 SC 641)

wherein the Apex Court held that in order to attract an

offence under Section 498 A of the Indian Penal Code,


the subsistence of a valid marriage is required. In the

case relating to the decision in Shivcharan Lal Verma's

case (Supra), the marriage in question was null and void

on account of the subsistence of another valid marriage.

It was held as follows:

             "..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 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,


       inasmuch 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.498A of the

       I.P.C."

                         IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                                   PRESENT:

                         THE HONOURABLE MR. JUSTICE B.KEMAL PASHA

                 TUESDAY, THE 23RD DAY OF JULY 2013/1ST SRAVANA, 1935

                                       Crl.MC.No. 3647 of 2009 ( )
                                       -------------------------------------


      

           SUPRABHA, D 

V
        1. STATE OF KERALA,
          
                                                   


                    B. KEMAL PASHA, J
               ------------------------------------
               Crl.M.C.No. 3647 of 2009
               -----------------------------------
          Dated this the 23rd day of July, 2013

                        Citation; 2014 (1) crimes 93 kerala


     The question precisely arises for consideration is

whether the existence of a valid marriage is required to

invite the ingredients of an offence punishable under

Section 498 A of the Indian Penal Code?

     2.  The petitioner, who is the accused in Crime

No.118 of 2005 of the Parippally Police Station presently

pending as C.C.No.354 of 2009 before the Judicial First

Class Magistrate's Court, Paravoor, Kollam District, has

come up with a prayer to get the proceedings against

her, quashed under Section 482 of the Code of Criminal

Procedure.

     3. The case before court below is, as a result of a

private complaint filed by CW1 as complainant, against

the present petitioner as accused, alleging an offence

punishable under Section 498 A of the Indian Penal


Code, which was referred to the Police under Section 156

(3) of the Code of Criminal Procedure. The Police have

registered the crime, investigated the matter, and filed

the final report. The defacto complainant is CW1, the

husband of the defacto complainant who is the son of

the petitioner is CW2, and the husband of the petitioner

is CW3 in this case.

      4. In the private complaint, it was alleged that CW2

had married CW1 on 28.01.2000. According to the

petitioner, as on 28.01.2000, there was no marriage at

all and that, on that day, CW2 had another subsisting

valid marriage. The said marriage of CW2 was dissolved

on 30.04.2003 only through Annexure A3 judgment

passed by the Family Court, Thiruvananthapurm. The

parties are Hindus. Matters being so, the alleged

marriage of CW1 with CW2 on 28.01.2000, if any

solemnized, was void.

      5.    The defacto complainant (CW1) has produced

Annexure R2(1) copy of the certificate of marriage


solemnized between her and CW2, which shows that the

marriage was solemnized between them through the

Provisions of the Special Marriage Act, on 14.10.2003.

      6. On going through the allegations levelled against

the petitioner by the defacto complainant in the private

complaint alleging an offence under Section 498 A IPC, it

is evident that the incidents relating to those allegations

were prior to 18.09.2003, as is evident from paragraph

11 of the private complaint produced by the petitioner as

Annexure A1. It has been specifically averred in

paragraph 11 that the petitioner has thrown out CWs 1

to 3 from her house on 18.09.2003 and thereafter CWs 1

to 3 have been residing together in a rented house. On

a perusal of the complaint, it seems that even though

many       complaints    were raised    by   the   defacto

complainant, none of such incidents, allegedly occurred

after 18.09.2003, is sufficient to constitute 'cruelty'

within the meaning of Section 498 A of the Indian Penal

Code.


      7. At the same time, there are allegations which

may constitute 'cruelty' within the meaning of Section

498 A of the Indian Penal Code, in the private complaint,

which had allegedly occurred prior to 18.09.2003. It has

to be noted that a valid marriage was solemnized

between CW1 and CW2 on 14.10.2003 only. Prior to

18.09.2003, due to the subsistence of another valid

marriage, the so called marital relationship between the

defacto complainant and CW2 could not create any valid

marriage.

      8.     According to the learned counsel for the

petitioner, a valid marriage is a necessary ingredient to

invite an offence under Section 498 A of the Indian Penal

Code. At the same time, the learned counsel for the

defacto complainant has strenuously contended that any

valid marriage is not required to invite the offence under

Section 498 A of the Indian Penal Code, whereas a long

cohabitation in the form of a marriage is sufficient. The

learned counsel for the petitioner has invited my



attention to the decision of a three Judges' Bench of the

Supreme Court in Shivcharan Lal Verma & Anr. v. State

of M.P. (2002 (2) Crimes 177 SC =JT (2002)2 SC 641)

wherein the Apex Court held that in order to attract an

offence under Section 498 A of the Indian Penal Code,

the subsistence of a valid marriage is required. In the

case relating to the decision in Shivcharan Lal Verma's

case (Supra), the marriage in question was null and void

on account of the subsistence of another valid marriage.

It was held as follows:

             "..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 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,


       inasmuch 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.498A of the

       I.P.C."

The said decision has been followed in Suvetha v.

Inspector of Police reported in 2009 (2) KLT 686 (SC), by

the Apex Court.

      9. The learned counsel for the defacto complainant

has invited my attention to the decision in Subbharao v.

State of A.P. reported in 2009 (2) KLT 531 (SC), wherein

it was held that:

         "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 S.304B or 498A. IPC."

It has to be noted that in the said decision, the earlier

decision of the three Judges' Bench in Shivcharan Lal

Verma's case (Supra) was not mentioned or considered.

      10. Similarly, the learned counsel for the defacto



complainant as well as the learned Public Prosecutor has

pointed out the decision in Aravindan v. State of Kerala

reported in [2005 (3) KLT 157] rendered by a learned

Single Judge of this Court, wherein it was held that:

             "The expression 'husband' in S.498 A covers

       such persons who enters into marital relationship

       and under the colour of such proclaimed status of

       husband coheres her in any manner, for any of

       the purposes enumerated in S.304 B or 498 A."

When there is a binding precedent by a three Judges'

Bench of the Apex Court in the matter, this court is

bound to follow the dictum laid down by the Apex Court

in the said decision. Relying on the decision in

Shivcharan Lal Verma's case (Supra), it has to be found

that an offence under Section 498 A cannot be invited in

this particular case for any period prior to 14.10.2003.

As far as any period after 14.10.2003 concerned, there is

no valid allegation in the private complaint in order to

invite the ingredients of Section 498 A of the Indian

Penal Code.



      11.    The allegations in the Final Report also are

based on the allegations contained in the private

complaint for the period prior to 18.09.2003.     Matters

being so, the allegations in the Final Report also are not

sufficient to constitute an offence under Section 498 A of

the Indian Penal Code in this case. Matters being so,

there is no purpose in proceeding with the matter further

against the petitioner based on Annexure A1 private

complaint or Annexure A2 Final Report and therefore, the

proceedings are liable to be quashed.

      In the result, this Crl.M.C. is allowed and the

proceedings as against the petitioner in C.C.No.354 of

2009 of the Judicial First Class Magistrate's Court,

Paravoor, Kollam District, are hereby quashed.



                       


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