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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