Kerala High Court M. Abdul Sathar, S/O. Eramullan vs Aneesa, D/O. Assainar on 12 January, 2005
IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl MC No. 8601 of 2002
1. M. ABDUL SATHAR, S/O. ERAMULLAN,
1. ANEESA, D/O. ASSAINAR,
2. SUB INSPECTOR OF POLICE, HOSDURG
3. STATE OF KERALA REPRESENTED BY
For Petitioner :SRI.IMTHIYAZ AHAMED
For Respondent :PUBLIC PROSECUTOR
The Hon’ble MRS. Justice K.HEMA
Dated : 12/01/2005
O R D E R
……..L…….T…….T…….T…….T…….T…….T…….J…….T…. K.HEMA, [email protected]@
CRL.M.C.No.8601 of 2002 @@
Dated this the 12th Janunary, [email protected]@
O R D E [email protected]@
Can a former/divorcee husband be held liable for offence under section 498A of Indian Penal Code (IPC, for short)? Is existence of marriage between accused and the victim, a requirement to constitute offence under section 498A IPC? Can the court take cognizance of offence under section 498A IPC on the basis of a complaint filed by a divorced woman? These are precisely, the questions to be answered in this case.
2. A private complaint was filed by a divorced wife against her former husband and his relatives before a Magistrate of First Class. It was alleged in the complaint that petitioner subjected the complainant/first respondent to cruelty during subsistence of their marriage and also after the divorce. Magistrate forwarded the complaint to police under section 156(3) of code of criminal procedure for investigation and a charge sheet was filed against the accused under section 498A and 34 of IPC. Petitioner is the first accused in the case. He seeks to quash the complaint and the proceedings initiated against him.
3. Learned counsel appearing for petitioner contended that petitioner cannot be prosecuted for offence under section 498A IPC since admittedly, he is not `the husband’ but only the `former husband’ of the complainant. According to him, offence under section 498A IPC will lie only against `the husband’ and `the relatives of the husband’. But, on account of the divorce petitioner ceased to be the `husband’ and no marital relationship exists between complainant and petitioner. Section 498A IPC deals with a matrimonial offence and existence of a matrimonial relationship between the accused and the victim is a pre-requisite to constitute offence under the said section. But, petitioner not `being the husband’ of the complainant, he cannot be proceeded against under section 498A IPC. These in short, are the arguments.
4. The above argument appears to be built upon the language of section 498A IPC. A plain reading of section 498A IPC shows that the expressions used therein referring to the accused are, `the husband’ and `the relatives of the husband’. But petitioner admittedly, is not `the husband’. He can be treated only as `former husband’ or `divorcee husband’ of the victim. So, the question is, can a former/divorcee husband be proceeded against for offence under section 498A of Indian Penal Code? In existence of marriage between the accused and the victim, a requirement to constitute offence under section 498A IPC? Can the court take cognizance of offence under section 498A IPC on the basis of a complaint filed by a divorced woman?
5. To seek answers to the above three questions, a reading of section 498A IPC is absolutely necessary. The said section is therefore extracted as hereunder:
“S.498-A. Husband or relative of husband of [email protected]@ i
woman subjecting her to cruelty.– Whoever, 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.
Explanation.- For the purposes of this section,@@ i
(a) any wilful conduct which is of such [email protected]@ i
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
(b) harassment of the woman where [email protected]@ i
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 any person related to her to meet such demand.”
6. From a reading of section 498A IPC, it is clear that if a person `being the husband’ or `the relative of the husband’ of a woman subjects her to cruelty, he can be held guilty of offence under the said section. The relevant expressions used in the section referring to the accused are, `being the husband’ and `the relative of the husband’. `Being the husband’ would ordinarily mean, `in his capacity as the husband’, or `on account of his being the husband’ or `on his being the husband’. That means, if a person subjects a woman to cruelty on his being her husband ie., in his status as the husband, offence under section 498A will be attracted.
7. From the above discussion it is clear that what is relevant to establish offence under section 498A IPC is the marital status of the accused at the time [email protected]@ AAAAAAAAAAAAAA
commission of offence. The expression, `being [email protected]@ AAAAAAAAAAAAAAAAAAAAAAA
husband’ used in the section relates to the marital status of the accused at the time of commission of the offence and not such status at the time of filing of complaint. Emphasis is seen given in section 498A IPC to the marital status of the accused at the time of commission of offence and not to what it was at the time of filing the complaint. In such circumstances, offence under section 498A IPC will lie against a person irrespective of whether he was the husband or former husband of a woman at the time of filing of complaint. If a former husband had committed the offence in his capacity as the husband during subsistence of his marriage with the victim, he can be proceeded against for offence under section 498A IPC.
8. A reading of section 498A IPC further reveals that the expression used in section 498A IPC to denote `the person aggrieved by the offence’ is significantly, `woman’ and not `wife’. This in a way, gives an indication that there is no bar for a ‘woman’ — whether she be the wife or the divorced wife — to proceed against the accused/husband for offence under section 498A IPC if she is aggrieved by commission of such offence. But in such case, it has to be established that the offence was committed by the accused while marriage between the accused and victim was in existence. It is not necessary that the victim should continue to be `the wife’ of the accused at the time of filing of complaint also.
9. The above position is further clear from section 198A of the Code of Criminal Procedure (the code, for short) also. The said section reads as follows:
“S.198-A. Prosecution of offences under [email protected]@ i
498-A of the Indian Penal Code.- No court shall take cognizance of an offence punishable under Section 498-A of the Indian Penal Code (45 of 1860) except upon a police report of facts which constitute such offence or upon a complaint made by the person aggrieved by the offence or by her father, mother, brother, sister or by her father’s or mother’s brother or sister or, with the leave of the Court, by any other person related to her by blood, marriage or adoption.”
10. The expression used in Section 198A of the Code, referring to the victim is ‘the person aggrieved by the offence’ and not wife. Thus, in section 198A of the code also, just as in section 498A IPC, the expression `wife’ is strikingly kept away by the legislature. The use of the word `wife’ appears to be deliberately avoided in this section also. Though `the person aggrieved by the offence’ under section 498A IPC is normally the `wife’, the expression used in section 198A of the code referring to such victim is not `wife’ but it is, `the person aggrieved by the offence’. This also suggests that there is no bar for the divorced wife from proceeding against the accused for the offence committed by him during subsistence of marriage between them.
11. The inclusion of the word `woman’, the exclusion of the word `wife’ and use of the expressions `being the husband’ in section 498A IPC and `the person aggrieved by the offence’ in section 198A of the code do not appear to be merely accidental. There must be certain clear-cut, unmistakable intention behind the same. Legislature must have intended that even if a victim of offence under section 498A IPC ceases to be the wife after commission of offence, such woman shall not be prevented from proceeding against the accused for the offence which he had committed during the subsistence of marriage. Legislature must have also planned that an accused should not be allowed to escape from the liability under section 498A IPC, by divorcing his wife after committing the offence during a period while his marriage with the victim was in existence. Both these intentions are made workable by the skill of draftsmanship in framing section 498A IPC as well as section 198A of the code.
12. Otherwise, it will be easy for an offender to defeat a woman and also the very object of the legislation by pronouncing `thalaq’ immediately after commission of offence under section 498A IPC and get himself absolved from criminal liability. This possibility must have been there in the mind of the framers of the section while introducing the provision and that explains the cautious usage of the relevant expressions in section 498A IPC and section 198A of the code. Thus, a woman, whether she be the wife or divorced wife can proceed against the accused/husband, if she is aggrieved by the offence committed by him during subsistence of their marriage under section 498A IPC. The court can take cognizance of such offence falling under Section 498A IPC on a complaint filed by a divorced wife.
13. Another important question also arises in this case. Can a former husband be held liable under section 498A IPC for alleged act of `cruelty’ committed by him on his divorced wife, after the divorce? As per the allegations in the complaint, petitioner who is the former/divorcee husband of the divorced woman continued to inflict `cruelty’ on her even after divorce. But, going by the language of section 498 IPC, he cannot be held guilty of offence under section 498A IPC because, as per the said Section, the act committed by a person will be an offence only if he has done it in his marital status as `the husband’. After divorce, he ceases to be `the husband’ and hence such acts committed by him after divorce will not constitute offence under section 498A IPC. If such acts make out any other offence, he can be proceeded against for such other offence or offences.
14. I shall now sum up: If a former/divorcee husband had subjected a divorced wife to cruelty in his status as her husband during subsistence of their marriage, he will be liable for offence under section 498A of IPC. But, if the alleged act of cruelty is committed by a former husband on the divorced wife after divorce, no offence under section 498A IPC will lie against him. He can however be proceeded against for such act, if it constitutes any other offence.
15. I would also hold that to constitute offence under section 498A IPC, existence of marriage between accused/husband and victim at the time of commission of offence is what is relevant and not that at the time of filing of complaint. There is also no bar under section 498A IPC for a divorced wife to file a complaint against her former husband for the offence committed by him during subsistence of their marriage under section 498A IPC. Section 198A of the Code enables a divorced wife also to file such complaint and the court can take cognizance of offence under section 498A IPC if the offence was committed at a time when the marriage between accused/husband and victim was subsisting.
16. In the above circumstances, this court cannot quash either the complaint or the proceedings initiated against petitioner, since the allegations in the records prima facie constitute offence under section 498A IPC. But, learned counsel appearing for the petitioner submitted that both petitioner and complainant got remarried after the divorce and they are well-settled in life and hence a lenient view may be taken to quash proceedings. I am not inclined to extend any leniency in this case. Legally, leniency is no ground to invoke section 482 of the code to quash proceedings. On facts, records reveal that petitioner continued to harass complainant even after the divorce.
17. This pattern of a crime or a post-divorce syndrome was evidently not within the legislative vision at the time of moulding section 498A IPC. Concern of the framers did not foresee perhaps, hazard of a crime breaking its way into a woman’s next shelter also. But, no wrong-doer deserves to escape for want of law. No offender shall be set free on misplaced sympathy or undue leniency. Accused is only one side of the coin. Court has to tilt the coin and see the other side too. While rendering justice, both sides shall be viewed. Criminal justice system cannot afford to forget the victim or ignore her. A victim must be assured that the system cares and feels for her. If any kind of forbidden compassion is extended to an offender, it can give a wrong signal to her.
18. The law is not dead, it has only slept. It can wake up at any hour of the day and pave its way to another suitable legislation in this country to check the harm. Judicial hopes have wings; those can soar higher and higher, longing to reach the pleasant skyline of justice and fairness. Butler, J. of the U.S. Supreme Court in Nice v. Minnesota (283 U.S. 697) stated thus:@@ AAAAAAAAAAAAAAAAAA
“Society could not long endure under [email protected]@ i
threats. If the courts did not protect the injured, the injured parties would then resort to private vengeance”.
Let this not happen.
This petition is dismissed.
K.HEMA, [email protected]@