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Gauhati High Court · body

2009 DIGILAW 50 (GAU)

Md. Lutfur Rahman v. State of Assam

2009-01-22

I.A.ANSARI

body2009
JUDGMENT I.A. Ansari, J. 1. I have heard Mr. G.C. Phukan, learned Senior counsel, appearing on behalf of the Petitioner, and Mr. B.S. Sinha, learned Additional Public Prosecutor, appearing on behalf of the State Respondents-opposite party No. 1.1 have also herd Mr. N. Islam, learned Counsel for the opposite party. No. 2. 2. By making this application under Section 482, Code of Criminal Procedure, the Petitioner, who is accused in G.R. Case No. 659/2007, which is pending in the Court of the learned SDJM, Sonari, has sought for quashing of the entire criminal proceeding on the ground that he is being prosecuted for an offence under Section 498, Code of Criminal Procedure, which makes only a husband of a woman, or relative of the husband of the woman, liable to prosecution; whereas the Petitioner has, according to what the Petitioner contends, dissolved the marriage-tie between him and the informant (i.e., the opposite party No. 2 herein) by giving her talaq. In support of his contention that the marriage of the Petitioner with the opposite party No. 2 herein stood dissolved before the criminal prosecution was initiated, the Petitioner has relied on a talaqnama (i.e., a document exhibiting dissolution of marriage), which is shown to have been seized by the police during the course of investigation of the case. 3. While considering the above aspect of the case, what needs to be pointed out is that the opposite party No. 2 had lodged an FIR alleging, inter alia, that she had been subjected to cruelty by the present Petitioner, who is her husband. The question as to whether the Petitioner is husband of the informant or not and/or the question as to whether the Petitioner, as a husband, had subjected the informant to cruelty or not, are the questions, which would be determined only at the trial inasmuch as the seizure of any document ipso facto will not determine answers to these questions at this stage of the trial. This apart, a seizure of the talaqnama, in itself, cannot be treated sufficient to hold, with absolute assuredness, that the marriage-tie between the Petitioner and the opposite party No. 2 herein legally stood dissolved as contended by the Petitioner inasmuch as it is one thing to pronounce a talaq or execute a talaqnama, but it is quite another to hold that the talaq pronounced, or the talaqnama executed, has, or has not, legally dissolved a marriage. These are various aspects of the case, which would be enquired into, and determined, at the trial. 4. It needs to be further pointed out that the question, as to whether the Petitioner was husband of the opposite party No. 2, is a question, which has to be determined not with reference to the date of lodging of the FIR, but with reference to the date(s), on which the opposite party No. 2, claims to have been subjected to cruelty. To put it a little differently, while trying a case under Section 498-A, IPC, the Court is required to determine if the accused is proved to have subjected his wife to cruelty in the manner as indicated in the said penal provisions. A complaint with regard cruelty may be made by a woman against a man even after she has ceased to be the man's wife provided that at the time, when she alleges to have been subjected to cruelty, she was the man's wife. What is material is as to whether the man had subjected female complainant to cruelty or not and when he had subjected the woman to cruelty, whether she was his wife or not. Thus, a complaint, under Section498-A , IPC, can be lodged by the woman even after she stands divorced provided that at the time, when she was subjected to torture, she was the wife of the person, who is accused to have tortured her or is relative of her husband. 5. Situated thus, it is clear that the present petition, made under Section 482, Code of Criminal Procedure, cannot, at this stage, be admitted, though it will remain open for the Petitioner to raise, at the trial, the issue as to whether the opposite party No. 2 was, or was not, his wife at the time, when, according to the opposite party No. 2, she had been subjected to cruelty by her husband, i.e., the Petitioner herein. 6. Because of what have been discussed and pointed out above, this Criminal, Petition is not admitted and the same shall accordingly stand dismissed. 7. With the above observations and directions, this Criminal Petition shall stand disposed of.