The Allahabad High Court while quashing proceedings against the petitioner under Section 498A held that if the marriage itself is null and void, then prosecution under Section 498-A IPC against the husband is not maintainable at the instance of the alleged wife.
Brief Facts:
The present petition was filed by the husband and his family members challenging the entire proceeding of the charge sheet as well as summoning order in connection with a case under Sections 498-A, 323, 504, 506 and Section 3/4 D.P. Act.
Contentions of the Petitioner:
The learned counsel appearing on behalf of the applicant contended that the impugned proceeding is illegal as opposite party no. 2, claiming herself as the wife of applicant no. 1, lodged the F.I.R. of the impugned proceeding on 08.06.2019 but the applicant got divorced from his first wife on 10.02.2022 therefore opposite party no. 2 was not the legally valid wife of the applicant and on the date above F.I.R., hence no offence under Section 498-A I.P.C. as well as Section 3/4 D.P. Act is made out against the applicants. Further, the counsel placed reliance on the decision in the case of Shivcharan Lal Verma and another vs. State of Madras, in which the Hon'ble Apex Court observed that if the marriage itself is null and void, then prosecution under Section 498-A I.P.C. against the husband is not maintainable at the instance of the alleged wife.
Contentions of the Respondent:
The learned counsel appearing on behalf of the respondent submitted that for the purpose of Section 498-A as well as Section 3/4 of the D.P. Act, strict interpretation regarding the validity of marriage should not be made and liberal consideration should be given to those persons who contracted for marriage and are cohabiting together.
Observations of the court:
The court referred to the decision of the court in the case of Shivcharan Lal Verma And Anr. vs State Of Madhya Pradesh wherein it was held that if the marriage itself is null and void, then prosecution under Section 498-A IPC against the husband is not maintainable at the instance of the alleged wife.
The court stated that from the perusal of Section 498-A I.P.C., it is explicit that to attract the ingredients of this Section, a woman must be subjected to cruelty by her husband or his relative. However, the definition of the husband is unavailable either in I.P.C. or the Hindu Marriage Act of 1955. However, as per Section 5 of the Hindu Marriage Act, for a valid marriage, neither party to the marriage should have a living spouse at the time of marriage, meaning that if the first wife is alive, marriage with another woman is not valid. The relationship between such a man and woman cannot be as husband and wife. Therefore, proceeding under Section 498-A I.P.C. is not maintainable against such a husband at the instance of a second wife (not legally wedded).
Further with respect to offence under Section 3/4 of the DP Act, the court stated that the main ingredients of these Sections in giving, taking or demanding dowry by any person and as per Section 2 of the Act, dowry may be given at, before or after the marriage.
The court further noted that in the present case, appellants and opposite party no. 2 had been living as husband and wife and three children were also borne from their co-habitation and therefore, the allegation of demand or receiving of dowry on the part of the applicants will attract ingredients of Section 3/4 D.P. Act, despite the fact, their marriage was not valid.
The decision of the Court:
The court partly allowed the petition, quashing proceedings under Section 498A IPC but maintaining proceedings under Section 3/4 of the D.P. Act.
Case Title: Akhilesh Keshari and Ors. vs State of U.P. and Anr.
Coram: Hon’ble Mr. Justice Arun Kumar Singh Deshwal
Case No.: APPLICATION U/S 482 No. - 38288 of 2023
Advocate for the Petitioner: Saurabh Pandey
Advocate for the Respondent: G.A.
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