The single judge bench of Justice J.C. Joshi of the Gujarat High Court in the case of Rameshbhai Danjibhai Solanki & Ors Vs State of Gujarat held that allegations of the offence u/s 498A of the IPC even can be maintained at the instance of the divorcee wife, provided that she alleges the incident of harassment and cruelty which could have been meted out while marriage was subsisting.
Brief Facts:
The present petition under Section 482 of the Code of Criminal Procedure, 1973 is filed for quashing the FIR registered for the offences punishable u/s 498(A), 294(b), 323, 114, 506(2), 494 and 114 of the IPC.
Contentions of the Petitioner:
The learned counsel appearing on behalf of the Petitioner contended that the family court had already granted divorce in favor of Petitioner no. 1 and the FIR was filed only to harass the Petitioner. Furthermore, it was contended that once the divorce has been granted then, the status of wife becomes of divorcee wife and she cannot file a complaint u/s 498A being the principal offence, as the status of husband and wife was discontinued on passing the divorce decree.
Contentions of the Respondents:
The learned counsel appearing on behalf of the Respondent contended that she was not aware of any divorce decree passed by the family court. Furthermore, it was contended that on the basis of the “Gharmele Samjuti Karar" which was executed between the Petitioner No. 1 and Respondent No. 2 both of them restored their marital life.
Observations of the Court:
The Hon’ble court while interpreting section 498A of the Indian Penal Code, 1860 observed that the accused must be "the husband" or "relatives of the husband" or he may act "in the capacity of the husband" or "in the capacity of relatives of the husband" in order to level the accusations of offence. "Former husband," "ex-husband," or "relative of the former husband or ex-husband" are not included in this term. In section 498A of the IPC, the word "woman" rather than "wife" was used by the legislature. This means that if the divorced woman makes a claim of harassment or cruelty that may have been meted out while the marriage was still present, the IPC's Section 498A offence may still be punished.
It was furthermore observed that when a competent court grants a divorce decree, the husband and wife's marital status is terminated, and the "being the husband" or "relatives of the husband" prerequisite requirement of section 498A of the IPC no longer applies.
Furthermore, the court also interpreted Section 494 of the Indian Penal Code, 1860, and observed that the essential requirement is that it is unlawful for a husband or wife to remarry while the marriage is still in progress or during the consummation of the marriage.
It was noted that the allegations in the FIR are very general in nature and don’t specify any details about harassment or cruelty, which could have been meted out to her during the time period, the marriage was subsisting or marriage was in existence.
It was furthermore noted that the procedure to restore matrimonial status by way of "Gharmele Samjuti Karar", more particularly, in the presence of subsisting divorce decree passed by the competent Court can’t be recognized.
Based on these considerations, the Hon’ble Court was of the view that the FIR does not disclose essential ingredients of an offence punishable u/s 498A as well as u/s 494 and other allied offences of the IPC. Therefore, quashed and set aside the proceedings.
The decision of the court:
With the above direction, the court allowed the present petition.
Case Title: Rameshbhai Danjibhai Solanki & Ors Vs State of Gujarat
Coram: Hon’ble Mr. Justice J.C. Joshi
Case No.: R/Criminal Misc. Application No. 3259 of 2016
Advocate for the Applicant: MS E. Shailaja
Advocate for the Respondent: Mr Nirad D Buch, Mr. Ronak Raval, Addl. Public Prosecutor
Read Judgment @Latestlaws.com
Picture Source :
