SC and HC Judgments Online at MyNation

Judgments of Supreme Court of India and High Courts

A.Sakthivel vs State Rep By Inspector Of Police on 8 August, 2019

Crl.O.P.No.26832 of 2014

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED: 08.08.2019

CORAM

THE HON’BLE MR.JUSTICE N.ANAND VENKATESH

Crl.O.P.No.26832 of 2014
in Crl.M.P.No.1 of 2014

A.Sakthivel
.. Petitioner
/versus/

1.State Rep by Inspector of Police,
All Women Police Station,
Udhagamandalam.
(Crime No.5 of 2013).

2.Nisha .. Respondents

Prayer: Criminal Original petition filed under Section 482 of Code of
Criminal Procedure, to call for the entire records of the C.C.No.196 of 2014,
on the file of the learned Judicial Magistrate, Udhagamandalam, Nilgiri
District and quash the same.

For Petitioners :M/s.M.Kempraj
For Respondent :Mr.C.Raghavan
Government Advocate (Crl.side)
for R1
No appearance for R2

ORDER

This petition has been filed seeking to quash the proceedings

pending in C.C.No.196 of 2014, on the file of the learned Judicial

Magistrate, Udhagamandalam, Nilgiri District.

http://www.judis.nic.in
1/14
Crl.O.P.No.26832 of 2014

2. The case of the prosecution is that the petitioner is the husband

of the second respondent and they got married on 26.08.2011. It is further

alleged that the petitioner demanded dowry and committed mental cruelty

upon her. The physical cruelty that was committed by the petitioner upon

the second respondent has also been stated in the final report.

3. The FIR was initially registered for an offence under Sections 417,

Section420 and Section498A of IPC. On the completion of the investigation, the final

report was filed only for an offence under Section 498 A of IPC and other

two offences were given up. The Court below also took cognizance of the

final report only for an offence under Section 498 A of IPC.

4. The learned counsel for the petitioner submitted that the very

prosecution against the petitioner is not maintainable due to the fact that

there was no husband and wife relationship between the petitioner and the

second respondent. The learned counsel submitted that the petitioner was

working as a Sub Inspector of Police and the second respondent had

developed some relationship with the petitioner. However, the fact

remains that the second respondent was already married to one Satheesan

and the said marriage is still in subsistence.

http://www.judis.nic.in
2/14
Crl.O.P.No.26832 of 2014

5. The learned counsel for the petitioner further submitted that

departmental proceedings were initiated against the petitioner after the

criminal proceedings were commenced and in the departmental

proceedings, the second respondent had also deposed as a witness. While,

deposing as a witness, the second respondent has categorically stated that

the first marriage is still in subsistence and this was well within the

knowledge of the petitioner and inspite of the same, the petitioner had

agreed to marry the second respondent.

6. The learned counsel submitted that the fact regarding the first

marriage of the 2nd respondent and its subsistence is supported by the

marriage certificate and also the admission of the 2nd respondent about the

said fact, during the departmental enquiry. Therefore, under such

circumstances, the learned counsel submitted that the prosecution under

Section 498 A of IPC, is not sustainable against the petitioner.

7. The learned counsel appearing on behalf of the respondent police

submitted that the respondent police, in the course of investigation, have

collected sufficient materials in order to prove the physical and mental

cruelty that was undergone by the 2nd respondent in the hands of the

petitioner. The learned counsel further submitted that the issue as to

whether the 2nd respondent was already married and whether there was a
http://www.judis.nic.in
3/14
Crl.O.P.No.26832 of 2014

valid marriage between the petitioner and the 2nd respondent, are all

matters of evidence and the same can be found out only in the course of

the trial. The learned counsel submitted that the said exercise cannot be

done by this Court in exercise of its jurisdiction under Section 482 of

Cr.P.C. Therefore, the learned counsel submitted that the petitioner must

be made to undergo the trial before the Court below.

8. The 2nd respondent has been served the notice and her name has

also been printed in the cause list. However, there is no appearance for

the 2nd respondent. Therefore, this Court proceeds to dispose of this case

on merits.

9. It is true that this Court cannot conduct a roving enquiry and

assess the evidence at the stage of considering a petition filed under

Section 482 of Cr.P.C. However, the only exception that has been provided

by the Hon’ble Supreme Court are in cases, where there are materials of

sterling quality available before the Court. In such cases, this Court can

always rely upon those documents, over which there is no dispute and they

are of sterling and unimpeachable quality.

10. In the instant case, there are two materials that are available

under this category. The first material is the marriage registration
http://www.judis.nic.in
4/14
Crl.O.P.No.26832 of 2014

certificate of the second respondent. This registration certificate has been

issued by the marriage officer of Palakkad District under the SectionSpecial

Marriage Act. It is found in the certificate that the 2nd respondent is

married to one Satheesan. The next material that is available before this

Court is the voter ID, wherein, the first respondent’s husband’s name is

found as Satheesan. The 2nd respondent has participated during the

departmental enquiry, as a witness and she has categorically admitted the

fact that she is married to Satheesan and she has not obtained any divorce

and when the first marriage was in force, she has married the petitioner

again in the 2011.

11. It is clear from the above that there was no valid marriage

between the petitioner and the 2nd respondent and there is no husband and

wife relationship between the parties.

12. The next issue that comes up for consideration is whether the

prosecution can sustain the charge under Section 498 A of IPC, even in a

case, where there is no husband and wife relationship between the parties?

13. The learned counsel for the petitioner has relied upon two

judgments of the Kerala High Court. The first judgment is in Suprabha

Vs.State of Kerala reported in 2014(1) Cri.CC 723: 2013(3) Ker L.J.447:
http://www.judis.nic.in
5/14
Crl.O.P.No.26832 of 2014

2013 (4) R.C.R (Criminal) 248: 2013 (3) KLT 514: 2013 (130) AIC 947:

2013 (3) DMC 873: 2014(1) Crimes 93 and and other judgment in

Unnikrishnan @ Chandu, S/o.Velayudhan, Parayil House, Pallipuram

Vs.State of Kerala, Represented by the Public Prosecutor, High Court of

Kerala, Ernakulam reported in 2017(3) Ker LJ 918: 2017 (3) DMC 477:

2017 (3) KLT 991: 2017 (4) ILR (Kerala) 822: 2018 (1) Cri.CC 166 :

2018 (181) AIC 727 : 2018 Cri. LJ 265: 2018 (2) Crimes 201: 2018 (2)

AICLR 383.

14. In the judgment in Suprabha Vs.State of Kerala, referred

supra, the relevant portions of the judgment is extracted hereunder:

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 no required
to invite 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 petitioer 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
http://www.judis.nic.in
6/14
Crl.O.P.No.26832 of 2014

subsistence of a valid marriage is required. In the case
relating to the decision in Shivcharan Lal Vrma’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 attracated 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.498 A is concerne, inasmuch as the alleged
marriaged 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 SectionI.P.C.”

The said decision has been followed in SectionSuvetha
v.Inspector of Police reported in 2009(2) R.C.R.(Criminal)
923: 2009 (3) Recent Apex Judgments (R.A.J.) 458: 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 SectionSubbharao v. State of
A.P.reported in 2009(2) R.C.R.(Criminal) 860: 2009 (3)
Recent Apex Judgments (R.A.J.) 3888: 2009(2) KLT 531
(SC), wherein it was held that:

http://www.judis.nic.in
7/14
Crl.O.P.No.26832 of 2014

”The absence of a definition of ‘husband’ to specifically
include such persons who contracaat 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.304 B or 498A. SectionIPC.”

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 SectionAravindan v. State of kerala
reportd in [2005 (3) R.C.R. (Criminal) 984 : 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 n 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
http://www.judis.nic.in
8/14
Crl.O.P.No.26832 of 2014

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.

15. In the judgment in Unnikrishnan @ Chandu, S/o.Velayudhan,

Parayil House, Pallipuram Vs.State of Kerala, referred supra, the

relevant portions of the judgment is extracted hereunder:

The trend of the earlier decisions was that for a
conviction under Sectionsection 498A IPC, the prosecution must
prove a valid marital relationship between the deceased
and the accused. There occurred a change in the trend
when the Honourable Supreme Court interpreted Sectionsection
498A IPC in view of the absence of the definition of the
word ”husband”, and held that even long co-habitation as
man and wife will attract a prosecution under Sectionsection 498A
IPC. The Honourable Supreme Court so decided in SectionReema
Agarwal v. Anupam, 2004 (2) KLT 822 SC, and later in
SectionKoppisetti Subbharao @ Subrahmaniam v. State of
Andhra Pradesh, AIR (2009) SC 2684. In Koppisetti
Subbharao’s case, the Honourable Supreme Court held in
paragraph 6 of the judgment thus,
”………………..there could be no impediment in law
to liberally construe the words or expressions relating to
the persons committing the offence so as to rope in not
only those validly married, but also any one who has
undergone some or other form of marriage, and thereby

http://www.judis.nic.in
9/14
Crl.O.P.No.26832 of 2014

assume for himself the position of husband to live, co-

habitat and exercise authority as such husband over
another woman…………………………….’.’

It is pertinent to note that prior to the above
decisions, a three Judge Bench of the Honourable Supreme
Court had decided otherwise, that the mental or physical
harassment of a lady who had not been legally married by
the accused, will not attract a prosecution under Section
498A IPC. SectionIn Shivcharan Lal Verma and Another v. State
of Madhya Pradesh, 2002 (2) Crimes 177 SC: JT 2002(2)
SC 641, the three Judge Bench held that for a prosecution
under Sectionsection 498A IPC, there must be a valid marital
relationship between the accused and the victim. That is
a case where a second wife committed suicide, allegedly
due to the acts of cruelty of her husband and the former
wife. The victim’s marriage with the accused in the said
case was void ab initio. For the said reason, the
Honourable Supreme Court held that a conviction under
Section 498A cannot be sustained. The decision was
followed by the Honourable Supreme Court later in
SectionU.Suvetha v. State by Inspector of Police and Another,
(2009) Crl.L.J. 2974. Following the decision of the
Honourable Supreme Court cited above in Shivcharan Lal
Verma’s case, this Court also held in SectionSuprabh-a v. State of
Kerala, 2013 (3) KLT 514 that , only a legally wedded
wife can claim the protection under Sectionsection 498A IPC, and
that in the absence of such a legal relationship as husband
and wife, there cannot be a conviction under Sectionsection 498A
http://www.judis.nic.in
10/14
Crl.O.P.No.26832 of 2014

SectionIPC. In the present case, the relationship of the accused
and the deceased was only a live-in relationship. Even in
Koppisetti Subbharao’s case, the Honourable Supreme
Court held that the parties must have undergone some sort
of ceremonies with the object of getting married. In this
case, the parties, admittedly , had not undergone any such
ceremony, and they just started living as man and wife.
Thus , I find that on legal ground itself, the accused is
entitled for acquittal. In the above circumstances, it is
not necessary to go into the factual aspects as regards the
allegation of cruelty and harassment.

In the result, the appeal is allowed. The appellant
is not found guilty of the offence under Sectionsection 498A IPC,
and he is acquitted of the said offence in appeal under
Sectionsection 386(b)(i) of Cr.P.C., 1973 Accordingly, the
conviction and sentence against him in S.C.No.650 of 2006
of the Court below will stand set aside. The appellant is
released from prosecution, and the bail bond, if any,
executed by him will stand discharged.

16. It is clear from the above judgments that only a legally wedded

wife can claim protection under Section 498 A of IPC and in the absence of

such a legal relationship as husband and wife, there cannot be a conviction

under Section 498 A of IPC. The three member Bench of the Hon’ble

http://www.judis.nic.in
11/14
Crl.O.P.No.26832 of 2014

Supreme Court, that has been referred in both the judgments, categorically

holds that in order to attract an offence under Section 498 A of IPC, the

subsistence of a valid marriage is a sine-qua-non. Where the marriage itself

is null and void, on account of the subsistence of another valid marriage,

the prosecution cannot sustain a charge under Section 498 A of IPC.

17. This Court is in complete agreement with the judgment of the

Kerala High Court.

18. The facts of this case is squarely covered by the above

judgments. In this case, there was no relationship of husband and wife

between the petitioner and the 2nd respondent, since there was a subsisting

marriage between the 2nd respondent and one Satheesan. This is

established beyond doubts by materials, which has already been referred

supra.

19. In the result, the proceedings against the petitioner cannot be

sustained for an offence under Section 498 A of IPC and therefore the

continuation of the proceedings is an abuse of process of Court which

requires interference of this Court under Section 482 of Cr.P.C.

http://www.judis.nic.in
12/14
Crl.O.P.No.26832 of 2014

20. The proceedings in C.C.No.196 of 2014, on the file of the learned

Judicial Magistrate, Udhagamandalam, Nilgiri District, is hereby quashed

and this Criminal Original Petition is allowed accordingly. Consequently,

connected miscellaneous petition is closed.

08.08.2019

Index : Yes/No
Internet: Yes/No
Speaking Order/Non Speaking Order
ub

To
1.The Inspector of Police,
All Women Police Station,
Udhagamandalam.

2.The Public Prosecutor,
High Court of Madras.

http://www.judis.nic.in
13/14
Crl.O.P.No.26832 of 2014

N.ANAND VENKATESH, J.
ub

Crl.O.P.No.26832 of 2019

http://www.judis.nic.in
14/14
Crl.O.P.No.26832 of 2014

08.08.2019

http://www.judis.nic.in
15/14

Leave a Reply

Your email address will not be published. Required fields are marked *

Copyright © 2020 SC and HC Judgments Online at MyNation
×

Free Legal Help, Just WhatsApp Away

MyNation HELP line

We are Not Lawyers, but No Lawyer will give you Advice like We do

Please read Group Rules – CLICK HERE, If You agree then Please Register CLICK HERE and after registration  JOIN WELCOME GROUP HERE

We handle Women Centric biased laws like False Sectioin 498A IPC, Domestic Violence(DV ACT), Divorce, Maintenance, Alimony, Child Custody, HMA 24, 125 CrPc, 307, 312, 313, 323, 354, 376, 377, 406, 420, 497, 506, 509; TEP, RTI and many more…

MyNation FoundationMyNation FoundationMyNation Foundation