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2013 DIGILAW 625 (KER)

Suprabha v. State of Kerala

2013-07-23

B.KEMAL PASHA

body2013
Judgment : 1. 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 CW 1 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 CW 1, 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 CW 2 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, CW 2 had another subsisting valid marriage. The said marriage of CW 2 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 CW 1 with CW2 on 28.01.2000, if any solemnized, was void. 5. The defacto complainant (CW 1) 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. 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 CW s 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 CW 2 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 CW 2 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. 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. 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.