THE HON'BLE SRI JUSTICE CHEEKATI MANAVENDRANATH ROY
CRIMINAL PETITION No.6807 of 2021
ORDER:-
This Criminal Petition under Section 482 of the Code of
Criminal Procedure, 1973 (for short "Cr.P.C.") is filed seeking
quash of C.C. No.6198 of 2018 on the file of the learned II
Additional Chief Metropolitan Magistrate, Vijayawada.
The petitioners are A-2 to A-5 in the above C.C. No.6198 of
2018 on the file of the learned II Additional Chief Metropolitan
Magistrate, Vijayawada.
Heard learned counsel for the petitioners and learned
Additional Public Prosecutor for the State.
The 2nd respondent, who is the de facto complainant, is the
wife of A-1. She lodged a report with the police alleging that A-1 and the petitioners herein, who are A-2 to A-5, who are the parents of A-1 and sister of A-1 along with A-5, who is the elder of the marriage, subjected her to physical and mental cruelty by making illegal demand of dowry. On the basis of the said report, a case in Crime No.23 of 2018 was registered in Women Police Station, Vijayawada City, for the offences punishable under Sections 498-A, 506 IPC and under Sections 3 and 4 of the Dowry Prohibition Act, 1961. The crime was investigated and eventually having found prima facie evidence against all the accused regarding their complicity in commission of the said offences, the Investigating Officer has filed charge sheet in the trial Court. The said case is now pending before the trial Court.
2
Learned counsel for the petitioners would submit that there are no specific allegations made against A-2 to A-4, who are the parents and sister of A-1, regarding commission of any such offences against the de facto complainant and that all the allegations made by the de facto complainant are only against A-1, who is her husband. Learned counsel for the petitioners further submits that the marriage between A-1 and the de facto complainant was dissolved long back by a decree of divorce passed by the learned Additional Senior Civil Judge, Srikakulam, in M.O.P. No.103 of 2018 as per decree passed on 18.04.2019 and as such the present prosecution under Section 498-A IPC is not maintainable against any of the petitioners. Therefore, he would submit that no case is made out against the petitioners, who are A- 2 to A-4 and A-5 regarding commission of the aforesaid offences. He would submit that A-5 is not a family member of A-1 and he is only a marriage elder and as such prosecution of A-5 for the offence punishable under Section 498-A IPC is not maintainable. Therefore, he would pray for quash of the said charge sheet against the petitioners, who are A-2 to A-5.
Learned Additional Public Prosecutor vehemently opposed the Criminal Petition. He would submit that the divorce decree was granted on 18.04.2019 whereas the present report was lodged by the de facto complainant long prior to the said decree, on 29.07.2018. Therefore, the subsequent decree of divorce will not come in the way of prosecution to prosecute the petitioners for the offences committed by the husband of the de facto complainant and his relatives prior to the date of granting of the said decree and 3 when they are living together. In support if his contention, he relied on the judgment of the Common High Court of Andhra Pradesh and Telangana in the case of Mohd. Rafiuddin Ahmed Vs State of Telangana1 and the judgment of the Kerala High Court in the case of Abdul Sathar Vs Aneesha2. Learned Additional Public Prosecutor further submits that there are specific allegations made against A-2 to A-4, who are the parents-in-law and sister-in-law of the de facto complainant regarding the harassment caused by them to the de facto complainant with illegal demand for dowry both physically and mentally and as such the matter requires trial to ascertain the truth or otherwise of the said allegations. He would submit that there is no merit in the contention of the petitioners that there are no allegations against these petitioners with regard to commission of offences. Therefore, he would pray for dismissal of the Criminal Petition.
This Court finds considerable force in the contention of the learned Additional Public Prosecutor. As can be seen from the decree passed in M.O.P.No.103 of 2018, it is evident that the said decree of divorce was passed on 18.04.2019 and it is an ex parte decree. Now, it is relevant to note that the present report, on the basis of which the present charge sheet is filed, was lodged on 29.07.2018 long prior to passing of the aforesaid decree regarding the harassment caused to the de facto complainant by the petitioners and A-1 making illegal demand for additional dowry that took place prior to the granting of the decree. Therefore, as rightly contended by the learned Additional Public Prosecutor that 1 2015 SCC OnLine Hyd 188 = (2015) 2 ALD (Cri) 520 2 2005 SCC OnLine Ker 19 4 the said decree of divorce which was passed on 18.04.2019 cannot be an impediment to prosecute the petitioners for the said offences said to have been committed by them prior to passing of the said decree. The common High Court of Andhra Pradesh and Telangana in the case of Mohd. Rafiuddin Ahmed Vs State of Telangana (referred supra) held that mere grant of divorce cannot be a ground to quash the F.I.R registered for the offence punishable under Section 498A IPC, which took place prior to the grant of the said decree. In arriving at such conclusion, the Common High Court relied on the judgment of Kerala High Court in the case of Abdul Sathar Vs Aneesha (referred supra) wherein it is held as follows:
"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 of commission of offence. The expression, `being the 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 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."
Therefore, the aforesaid analogy squarely applies to the present facts of the case. As per the contents of the report lodged by the de facto complainant, A-1 was her husband at the time of commission of the said offence of subjecting the de facto complainant to physical and mental cruelty. So, also A-2 to A-4 are the relatives of A-1, being his family members at the relevant time. Therefore, the subsequent grant of divorce on 18.04.2019 cannot come in the way of prosecution to prosecute the accused for the offences committed by them as alleged in the report lodged by the 5 de facto complainant and in the charge sheet. Therefore, there is no merit in the said contention of the learned counsel for the petitioners and the said contention is rejected.
As already noticed supra, specific allegations are made against the petitioners 1 to 3 regarding the harassment said to have been caused by them both physically and mentally to the de facto complainant. Therefore, the matter requires trial to ascertain the truth or otherwise of the said allegations. There are absolutely no valid legal grounds emanating from the record warranting interference of this Court under Section 482 Cr.P.C to quash the charge sheet that is filed against the petitioners 1 to 3, who are A-2 to A-4, in the above crime.
However, as regards the petitioner 4, who is A-5, is concerned, admittedly he is not a family member or a relative of A-
1. He is only an elder of the marriage. It is now well settled that prosecution under Section 498A IPC is maintainable only against husband and his relatives or family members. A stranger to the family of husband, who is not a relative of the husband, is not liable for prosecution under Section 498A IPC. The legal position in this regard is not an undecided question of law. The Apex Court in the case of U.Suvetha Vs. State3 held that only the relatives or family members of the husband are liable for punishment under Section 498A IPC and a stranger to the family of husband is not liable for prosecution under Section 498A IPC. Therefore, in view of the said settled law, the 4th petitioner, who is A-5, who is not a family member or a relative of A-1, is not liable for prosecution for 3 (2009) 6 SCC 757 6 the offence punishable under Section 498A IPC. Therefore, the charge sheet against him is liable to be quashed.
In the result, the Criminal Petition insofar as the petitioners 1 to 3 is concerned, is dismissed and the Criminal Petition in respect of the 4th petitioner, who is A-5, is allowed and the charge sheet filed against A-5 is hereby quashed.
Miscellaneous petitions, if any pending, in the Criminal Petition, shall stand closed.
______________________________________________ JUSTICE CHEEKATI MANAVENDRANATH ROY Date: 01.12.2021 AKN 7 THE HON'BLE SRI JUSTICE CHEEKATI MANAVENDRANATH ROY CRIMINAL PETITION No.6807 of 2021 Date: 01-12-2021 AKN