Crl.O.P.No.11644 of 2021 and
Crl.M.P.No.6693 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 08.09.2022
CORAM:
THE HON'BLE Ms.JUSTICE R.N.MANJULA
Crl.O.P.No.11644 of 2021 and
Crl.M.P.No.6693 of 2021
Samuvel Satishkumar
... Petitioner
Vs.
1.The State,
Rep. by the Inspector,
All Women Police Station,
Vandavasi,
Tiruvannamalai District,
Tamil Nadu 604 406.
(Crime No.7 of 2021)
2.Radhika
... Respondents
PRAYER : Criminal Original Petition is filed under Section 482 of the Code of
Criminal Procedure, to call for the records of the proceedings in Crime No.7 of
2021 on the file of the 1st respondent police and quash the same as illegal and
without jurisdiction.
For Petitioner : Mr.K.Sharath Chandran
For Respondents : Mr.A.Damodaran, APP for R1
Mr.S.Cholarasan for R2
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Crl.O.P.No.11644 of 2021 and
Crl.M.P.No.6693 of 2021
ORDER
This Criminal Original Petition has been preferred to call for the records of the proceedings in Crime No.7 of 2021 on the file of the 1st respondent police and quash the same.
2. Heard Mr.K.Sharath Chandran, learned counsel for the petitioner, Mr.A.Damodaran, learned Additional Public Prosecutor appearing for the first respondent and Mr.S.Cholarasan, learned counsel for the second respondent and also perused the materials placed on record.
3. The short facts of the case are as follows:
The case has been registered against the petitioner for the offences under Sections 498-A and 417 I.P.C on the basis of the complaint of the second respondent by alleging that the accused fell in love with her and on 11.11.2019, he married her in the presence of her younger sister and was living with her in her mother's place. Subsequently, they took a separate house and they were living together. During that course, she got conceived. On the advice of the doctor, the foetus was aborted and once again she got conceived. She came to know that the accused was going to get engaged with an another 2/15 https://www.mhc.tn.gov.in/judis Crl.O.P.No.11644 of 2021 and Crl.M.P.No.6693 of 2021 woman and the betrothal function was fixed on 23.04.2021. So the defacto complainant informed the said facts to the bride who is proposed to be engaged for the accused. Later, she also complained the matter to the pastor of Thiresapuram Church. Since she did not receive any proper response from the petitioner, she had filed the complaint.
4. The learned counsel for the petitioner submitted that the defacto complainant already got married to one Raghu with whom she had even delivered a baby by name Charumathi; since the defacto complainant is a married woman and she was not a legally wedded wife of the accused, she cannot file any complaint for making out a case under Section 498(A) of I.P.C. His further submission is that when the defacto complainant has already got married, there cannot be any promise to marry her once again; even if such promise is given, that cannot be a legal promise; so, no legal action can be initiated by the defacto complainant by alleging that a legal promise was not fulfilled; further, on the alleged promise, the defacto complainant has not done anything or omitted to do anything which would cause damage or harm to her body, mind, reputation or property. In support of the above contention, he cited the judgment in the case of K.U.Prabhu Raj Vs. State of Sub Inspector 3/15 https://www.mhc.tn.gov.in/judis Crl.O.P.No.11644 of 2021 and Crl.M.P.No.6693 of 2021 of Police, A.W.P.S, Tambaram and Another reported in 2012 3 L.W.770.
5. Mr.A.Damodaran, learned Additional Public Prosecutor appearing for the first respondent submitted that only in view of the promise given by the petitioner, the defacto complainant started to have physical intimacy with the accused and because of that, she got conceived twice; she had even undergone abortion at some point of time and that would have definitely caused bodily harm to her; having made the defacto complainant to believe that the accused would marry her, he had sexual relationship with her and later he opted to marry some other person and the act of the accused will fall under Section 417 of I.P.C. though not under Section 498(A) of I.P.C; it is further submitted that the marriage between the defacto complainant and Raghu got cancelled between themselves and they even executed a marriage cancellation deed.
6. The learned counsel for the second respondent submitted that the petitioner had cheated her by making her to believe that she got married to him and persuaded her to have sexual relationship with him; in the community to which the second respondent belongs, customary divorce is allowed and hence 4/15 https://www.mhc.tn.gov.in/judis Crl.O.P.No.11644 of 2021 and Crl.M.P.No.6693 of 2021 the marriage revocation deed was entered between parties; hence it is right to charge the accused for the offences under Sections 498-A and 417 I.P.C.
7. The fact that the defacto complainant was originally married to one Raghu is not denied. But, the contention of the second respondent / defacto complainant is that the marriage between the defacto complainant and Raghu got revoked by virtue of a revocation deed. It is needless to state that a marriage cannot be dissolved by way of executing a revocation deed privately between the couple. By way of a marriage revocation deed, at the best, the couple can workout the terms for dissolving their marriage and on the basis of the revocation deed, they can file a petition for getting divorce by mutual consent.
8. As per Section 4 of the Hindu Marriage Act all customs and usage which had been in practice prior to the coming into force of the Act will cease to have any effect. The Hindu Marriage Act came into force on 18.05.1955 and Section 4 of the Act reads as under:
“4. Overriding effect of Act:
Save as otherwise expressly provided in this Act,— 5/15 https://www.mhc.tn.gov.in/judis Crl.O.P.No.11644 of 2021 and Crl.M.P.No.6693 of 2021
(a) any text, rule or interpretation of Hindu law or any custom or usage as part of that law in force immediately before the commencement of this Act shall cease to have effect with re- spect to any matter for which provision is made in this Act;
(b) any other law in force immediately before the commence- ment of this Act shall cease to have effect in so far as it is in- consistent with any of the provisions contained in this Act.”
9. So, the marriage between Raghu and the defacto complainant was not dissolved legally and it is still in subsistence. Under such circumstances, it is not right to invoke the penal provision under Section 498(A) of I.P.C. For the sake of convenience, the provision under Section 498(A) of I.P.C., is extracted hereunder:
“498(A). Husband or relative of husband of a 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.
For the purpose of this section, “Cruelty” means-
(a) any wilful conduct which is of such a 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 6/15 https://www.mhc.tn.gov.in/judis Crl.O.P.No.11644 of 2021 and Crl.M.P.No.6693 of 2021 physical) of the woman; or
(b) harassment of the woman where such 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.”
10. The above provision would state that perpetrator should be the husband or the relative of husband of the aggrieved woman. Since the defacto complainant is the wife of another man, she cannot claim herself as the wife of the petitioner and file a complaint against him for the offence under Section 498(A) of I.P.C. In this regard, it is appropriate to refer the judgment of this Court rendered in Crl.O.P.No.26832 of 2014 dated 08.08.2019. In the said judgment, a case of similar nature was dealt and it is held as under:
“16. It is clear from the above judgments that only a legally wedded wife can claim protection under Section 498 A of IPC and in the absence of such a legal relationship as husband and wife, there cannot be a conviction under Section 498 A of IPC. The three member Bench of the Hon'ble Supreme Court, that has been referred in both the judgments, categorically holds that in order to attract an offence under Section 498 A of IPC, the subsistence of a valid marriage is a 7/15 https://www.mhc.tn.gov.in/judis Crl.O.P.No.11644 of 2021 and Crl.M.P.No.6693 of 2021 sine-qua-non. Where the marriage itself is null and void, on account of the subsistence of another valid marriage, the prosecution cannot sustain a charge under Section 498 A of IPC.”
11. When there is no legal relationship between the petitioner and the defacto complainant as husband and wife, the first respondent cannot invoke the provisions of Section 498(A) against the petitioner.
12. The next penal provision is Section 417 of I.P.C. The categorical contention of the learned Additional Public Prosecutor is that the petitioner made the complainant to believe that he would marry her and on that assurance, the complainant surrendered her personal self and allowed him to have physical relationship with her and in view of the said relationship, she got conceived twice. It is submitted by the prosecution that the petitioner without fulfilling his promise had chosen to marry an another woman. The conduct of the petitioner is nothing but cheating.
13. For the sake of convenience, Section 417 of I.P.C., is extracted hereunder:
8/15 https://www.mhc.tn.gov.in/judis Crl.O.P.No.11644 of 2021 and Crl.M.P.No.6693 of 2021 “417. Punishment for cheating – Whoever cheats shall be punished with imprisonment of either description for a term which may extend to one year, or with fine, or with both.”
14. As stated already, the complainant is a married woman. When her marriage with her husband Raghu is not dissolved, there is no reason for her to believe that another man like the petitioner would marry her. Even for the sake of arguments, it is taken that the petitioner had assured her to marry, that cannot happen so long as the marriage of the complainant with Raghu is subsisting. In the complaint it is stated that on 11.11.2019, the petitioner married her in the presence of her own sister by name Selvi. In that case. the complainant cannot have any grievance about the alleged promise. Because according to her, a marriage was held between herself and the petitioner in the presence of her own sister. However, the alleged marriage cannot have any legal sanctity due to her earlier marriage with Raghu, which is still in force.
15. The defacto complainant had taken a risk of moving with the petitioner and in that course, she got conceived. The petitioner did not deny his 9/15 https://www.mhc.tn.gov.in/judis Crl.O.P.No.11644 of 2021 and Crl.M.P.No.6693 of 2021 relationship with the defacto complainant. Being an unmarried man, he felt it comfortable to live with a person who had already married, without any matrimonial commitment with her. He went to the extent of having physical intimacy with her. The complainant had also consented to have such relationship with the second respondent. The second respondent / defacto complainant is a major and a mother of a child born. Hence it is possible for her to understood the consequences of her decisions and actions. The relationship between the defacto complainant and the petitioner appears only as a relationship by consent between two adults or in other words, it is a kind of living arrangement made between the petitioner and the defacto complainant. Having opted to live with the petitioner in such an arrangement, where the parties to the relationship does not have any commitments similar to marriage, the defacto complainant cannot say that she was cheated by the petitioner.
16. In this connection, the learned counsel for the petitioner cited a decision in the case of K.U.Prabhu Raj Vs. Sub Inspector of Police, A.W.P.S, Tambaram and Another reported in 2012 3 L.W.770. The relevant paragraph is extracted hereunder:
10/15 https://www.mhc.tn.gov.in/judis Crl.O.P.No.11644 of 2021 and Crl.M.P.No.6693 of 2021 “17. The learned counsel for the second respondent would further submit that the offence involved in this case falls within the ambit of the third limb of Section 415 I.P.C as enumerated above. According to the learned counsel, but for the promise made by the petitioner, the daughter of the second respondent would have married someone-else and settled down in her life. Thus, according to him, the petitioner has committed a clear offence of cheating. In my considered opinion, it is not so. As has been held by the Division Bench of the Calcutta High Court in Abhoy Pradhan v. State of W.B case (cited supra), mere promise to marry and later on withdrawing the said promise will not amount to an offence of cheating at all. On such false promise to marry, the person to whom such promise was made should have done or omitted to do something that he would not done or omitted to do but for the deception. In this case, absolutely, there are no materials available on record to show that because of the promise made by the petitioner, the daughter of the second respondent has done anything or omitted to do something which has the tendency to cause damage or harm to the body or mind or reputation or property of the daughter of the second respondent. In the absence of the same, the entire allegations found in the records, in my considered opinion, would not make out an offence under Section 417 or 420 I.P.C., at all.” 11/15 https://www.mhc.tn.gov.in/judis Crl.O.P.No.11644 of 2021 and Crl.M.P.No.6693 of 2021
17. It might be true that the impact of the failed relationship would be much on the defacto complainant than the petitioner, who had chosen to marry an another woman of his choice. But that cannot be the reason to invoke the penal provisions to punish the petitioner. The assurance of marriage to a person who is already married cannot be called as deception within the context of Section 417 of I.P.C. It is one more instance where the parties need to be careful about the choices and decisions taken to shape up their personal life. The materials on the face of it does not make out a case against the petitioner for the offences under Section 498(A) & 417 of I.P.C.
18. The learned counsel for the complainant/second respondent submitted that the first respondent ought to have invoked the relevant provisions of The Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act. From the materials available on record the caste of the complainant is not known. However, if the first respondent gets any fresh materials for invoking the Special Act or about the quality of the consent of the complainant to have sexual relationship with the petitioner in the given set of facts, the first respondent is at liberty to re-open the case and do further 12/15 https://www.mhc.tn.gov.in/judis Crl.O.P.No.11644 of 2021 and Crl.M.P.No.6693 of 2021 investigation by getting appropriate permission under sec. 173(8) Cr.P.C.
19. In the result, this Criminal Original Petition is allowed and the proceedings in Crime No.7 of 2021 on the file of the 1st respondent police is quashed. The first respondent is at liberty to re-open the case by getting proper permission for further investigation under Section 173(8) Cr.P.C, if any fresh materials are obtained with regard to the facts as observed already. Consequently, connected miscellaneous petition is closed.
Index: Yes/No 08.09.2022
Speaking / Non Speaking Order
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To
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Crl.O.P.No.11644 of 2021 and
Crl.M.P.No.6693 of 2021
1.The Inspector,
All Women Police Station,
Vandavasi,
Tiruvannamalai District,
Tamil Nadu 604 406.
2.The Public Prosecutor,
High Court of Madras.
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R.N.MANJULA, J.
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