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2023 DIGILAW 619 (MP)

Ramanuj Tripathi v. State of M. P.

2023-06-21

ANURADHA SHUKLA

body2023
ORDER 1. In this present revision under section 397 read with section 401 of the Code of Criminal Procedure, the applicant has challenged the judgment and order dated 6.5.2023 passed by learned Sessions Judge, Sidhi by which Criminal Appeal No.76 of 2022 preferred by the petitioner against his conviction and sentence awarded in RCT No178/2013 decided on 30.8.2022 was dismissed. 2. The prosecution case is that the petitioner was married to Nisha Tripathi (PW-1) in the year 2013 and in that year itself the petitioner subjected his wife to cruelty and harassment for demand of dowry; on 24.12.2013, he physically assaulted and abused the complainant-wife and forcibly threw her out of the house; the complaint-wife sustained injuries in the incident and lodged the FIR. After investigation, charge-sheet was filed against the petitioner and trial was conducted. On conclusion of trial, the petitioner was convicted under section 498-A and 323 of IPC and section 4 of Dowry Prohibition Act. For the offence under section 323 of IPC he was sentenced for fine amount of Rs.500/- and for the other two offences under section 498-A of IPC and section 4 of Dowry Prohibition Act he was sentenced to undergo R.I. for 6 months each and fine amount of Rs.500/- each respectively. 3. Against this judgment the petitioner filed the Criminal Appeal 76/2022 which was dismissed and the conviction as well as sentence of petitioner were affirmed. 4. Being aggrieved thereby the present revision is filed. In this revision, the learned counsel for the petitioner has submitted that impugned order is improper and against the law because material available on record was not considered and evaluated. Both the Courts below failed to appreciate that no valid marriage was ever solemnized between the petitioner and the complainant, as the complainant was already married to Himanshu Dwivedi and that first marriage never came to an end because no divorce was sought by the either parties to that marriage. It is, therefore, prayed that in the light of judgment that Hon'ble Apex Court in the case of Shivcharan Lal Verma v. State of M.P. (2007) 15 SCC 369 conviction as well as sentence should be set-aside. 5. The present revision is strongly opposed by the learned counsel for the State. She has strongly emphasized on the fact that the complainant-wife sustained injuries on account of harassment by the petitioner-husband, which shows cruelty to her. 5. The present revision is strongly opposed by the learned counsel for the State. She has strongly emphasized on the fact that the complainant-wife sustained injuries on account of harassment by the petitioner-husband, which shows cruelty to her. Hence, prayer was made to reject this revision. 6. In the light of the contention regarding validity of marriage, the evidence placed on record is examined. Complainant-Nisha Tripathi (PW-1) has admitted that prior to solemnization of marriage with the petitioner, she was married to Himanshu Dwivedi with whom she had a marital life of around 1 and half years and also had a son but due to marital dispute, she stopped residing with her first husband and after 2 years of the dissolution of first marriage she got married to the petitioner-Ramanuj Tripathi. It is claimed by her that for this second marriage the marital rites were held in Temple and she also had a notarized document regarding solemnization of this marriage. In the entire evidence, she could not disclose when and how her first marriage was officially dissolved. 7. Ramashray Upadhyay (PW-2) is the father of the compalinant. In para No.2 of his cross-examination, he has admitted that complainant had left her first husband and did not undertake any divorce proceedings. Similar is the statement of Savitri Upadhyay, (PW-3), the mother of the complainant. 8. The statements of these material witnesses are sufficient to reach to the conclusion that during the subsistence of a valid marriage with Himanshu Dwivedi, the complainant entered into a second marriage with the petitioner. The second marriage, though not as such declared null and void, has no validity in the eye of law. 9. The trial Court as well as the appellate Court have relied upon the decision in Reema Agrawal v. Anupam, (2004) 3 SCC 199 in which it was held by the Supreme Court that "the expression 'husband' covers a person who enters into a marital relationship and under the color of such feigned status of husband subjects the woman concerned to cruelty in the manner provided under section 498A, whatever be the legitimacy of marriage itself for the limited purpose of Sec 498A. The absence of definition of a 'husband' specifically include such persons who contract marriages ostensibly and cohabit with such woman, in the purported exercise of their role and status as 'husband' is no ground to exclude them from the purview of 498A IPC". 10. Learned counsel for the petitioner has per contra relied upon the decision of larger Bench delivered in Shivcharan Lal (supra) in which it is held that if the marriage between the parties was null and void conviction under section 498A cannot be sustained. Similar was the view of Chhattisgarh High Court in the case of Raghuveer v. State of M.P. Criminal Appeal No.325/1993 decided on 25.03.2010. Even recently in the case of P. Shiv Kumar v. State of MP, 2023 Live Law (SC) 116 Hon'ble apex Court has held that when marriage has been found to be null and void, the conviction under section 498A of IPC would not be sustainable. 11. In the legal context of the matter, this Court is of the finding that conviction under section 498A of IPC passed by the Courts below is liable to be set-aside. 12. The petitioner was also convicted under section 4 of Dowry Prohibition Act. That offence prescribes punishment for the Act of demanding dowry from the parents/other relatives/guardians of either party to the marriage. Section 2 of this Act of 1961 defines the word 'dowry' and it says that dowry means any property of given or agreed to be given either directly or indirectly by one party/by the parents of either party to a marriage to the other party to the marriage at or before or any time after the marriage in connection with the marriage of the said party. This definition clearly refers to the property or valuable security given or agreed to be given in relation to the marriage. This definition cannot be enlarged to include within its scope, a marriage which is null and void in the eye of law. Therefore, if the marriage is not a valid one any property or valuable security received in reference to a ceremony other than of a valid marriage would not come within the ambit of dowry. Accordingly, the marriage between the petitioner and complainant not being proved to be a valid one does not attract the provisions of section 4 of Dowry Prohibition Act, 1961. Accordingly, the marriage between the petitioner and complainant not being proved to be a valid one does not attract the provisions of section 4 of Dowry Prohibition Act, 1961. Therefore, conviction of petitioner under section 4 of Dowry Prohibition Act is also liable to be set-aside for the simple reason, that his marriage with the complainant was null and void. 12. The petitioner also suffers conviction under section 323 of IPC under which he was sentenced to fine amount of Rs.500/-. Statements of complainant-Nisha Tripathi (PW-1), her father Ramashray Upadhyay (PW-2) and mother Savitri Upadhyay (PW-3) absolutely support the prosecution story and their statements are corroborated by the MLC report (Exhibit P/7) as well as statement of Dr. Pramod Kushwaha (PW-6). Both the learned Courts below have extensively evaluated the evidence on this point and I do not find any error committed by them in reaching to the finding of conviction. Hence, conviction under section 323 of IPC and sentence passed thereunder needs no intervention. 13. Accordingly, this revision is partly allowed and the conviction as well as sentence of petitioner under section 498-A of IPC and section 4 of Dowry Prohibition Act are set-aside. Conviction and sentence under section 323 of IPC are affirmed. 14. This revision is accordingly, disposed of. Petitioner was on bail. His bail bond stands discharged forthwith. Fine amount, if any, deposited under these said two heads be refunded to the petitioner. Let the copy of this order along with its record be sent to the Courts below for information and compliance.