Tottadi Baghyalakshmi vs The The State Of Andhra Pradesh
2021 Latest Caselaw 4917 AP

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.

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

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

2015 SCC OnLine Hyd 188 = (2015) 2 ALD (Cri) 520

2005 SCC OnLine Ker 19

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

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

(2009) 6 SCC 757

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

THE HON'BLE SRI JUSTICE CHEEKATI MANAVENDRANATH ROY

CRIMINAL PETITION No.6807 of 2021

Date: 01-12-2021

AKN