Kerala High Court
Abdul Khader vs The State Of Kerala on 5 November, 2024
Crl.Appeal No.847 of 2007 1 2024:KER:82312
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS.JUSTICE SOPHY THOMAS
TUESDAY, THE 5TH DAY OF NOVEMBER 2024 / 14TH KARTHIKA, 1946
CRL.A NO.847 OF 2007
AGAINST THE JUDGMENT DATED 04.05.2007 IN SC NO.325 OF
2004 OF ADDITIONAL SESSIONS JUDGE (ADHOC)-II, KALPETTA
APPELLANTS/ACCUSED:
1 ABDUL KHADER, S/O.ASSAINAR,
EDAKANDAN HOUSE,POZHUTHANA, VYTHIRI, WAYANAD DISTRICT.
2 SULEKHA, W/O. ASSAINAR
EDAKANDAN HOUSE, POZHUTHANA, VYTHIRI, WAYANAD DISTRICT.
3 ASSAINAR, EDAKANDAN HOUSE
POZHUTHANA, VYTHIRI, WAYANAD DISTRICT.
4 SIRAJUDHEEN, S/O.ASSAINAR,
EDAKANDAN HOUSE, POZHUTHANA, VYTHIRI, WAYANAD DISTRICT.
BY ADV SRI.BABU S. NAIR
RESPONDENT/STATE:
THE STATE OF KERALA, REPRESENTED BY
SUB INSPECTOR OF POLICE, VYTHIRI POLICE STATION-
THROUGH THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA,,
ERNAKULAM, KOCHI-31.
SMT.SEENA C, PUBLIC PROSECUTOR
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON
05.11.2024, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
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C.R
JUDGMENT
This appeal is at the instance of accused Nos.1 to 4 in
SC No.325 of 2004 on the file of Additional Sessions Judge
(Ad hoc-II), Kalpetta, challenging their conviction and sentence
under Section 498A read with Section 34 of IPC, vide judgment
dated 04.05.2007.
2. The prosecution case is that, Asmabi, an 18 year old girl
who was the wife of the 1st accused, committed suicide on
19.06.2002 due to the matrimonial cruelties meted out to her, by
the accused persons, who are her husband and in-laws, and also
due to the harassment on demand of dowry.
3. The accused persons (4 in number) were chargesheeted
by Dy.SP, Kalpetta, for offences punishable under Sections 498A,
304B and 306 read with Section 34 of IPC.
4. After committal and on appearance of the accused before
the trial court, charge was framed against them under Sections
498A, 304B, 306 read with Section 34 of IPC, to which, all of them
pleaded not guilty and claimed to be tried.
5. From the side of prosecution, PWs 1 to 24 were examined,
Exts.P1 to P14 were marked and MOs 1 to 3 were identified.
Crl.Appeal No.847 of 2007 3 2024:KER:82312
6. On closure of prosecution evidence, accused were
questioned under Section 313 of Cr.P.C. They denied all the
incriminating circumstances brought on record and pleaded
innocence. Except marking of Exts.D1 to D5 contradictions
through prosecution witnesses, no evidence was adduced from the
side of accused.
7. On analysing the facts and evidence and on hearing the
rival contentions from either side, the trial court found that the
prosecution could not prove the guilt of the accused under
Section 304B and 306 of IPC and so, they were acquitted
thereunder. But, they were found guilty under Section 498A read
with Section 34 of IPC and each of them was convicted and
sentenced to undergo rigorous imprisonment for three years and
fine of Rs.10,000/- with a default sentence of rigorous
imprisonment for six months each. Aggrieved by the conviction
and sentence, the accused preferred this appeal.
8. Heard learned counsel for the appellants/accused and
learned Public Prosecutor for the respondent/State.
9. Appellants 1 to 4 can be referred as accused Nos.1 to 4
for the purpose of convenience.
Crl.Appeal No.847 of 2007 4 2024:KER:82312
10. There is no dispute with respect to the fact that Asmabi,
a girl aged 18 years, who was the daughter of PW3, committed
suicide on 19.06.2002, by consuming poison. The prosecution
case is that, Asmabi was a Hindu by religion and her real name
was Divya. She fell in love with the 1st accused Abdul Khader and
she became pregnant from him. Accused Nos.2 and 3, the parents
of the 1st accused, aborted her pregnancy forcibly in the hospital of
PW7-Doctor Chakrapani. When her parents came to know about
her love affair with the 1st accused and abortion of her pregnancy,
the religious leaders of both communities mediated, and decided to
convert Miss.Divya into an Islam for conducting her marriage with
the 1st accused, as per Muslim rites and custom. She was taken to
Ponnani for conversion and she embraced Muslim faith, and
received the name Asmabi. Her marriage could not be conducted
then, as she was a minor at that time. She was taken back from
Ponnani, and after undergoing religious teachings, her Nikah with
the 1st accused was solemnised and thereafter she started living
with the 1st accused as his wife, along with his parents and siblings.
11. Life of Asmabi in the house of the 1st accused was
miserable as they ill-treated her physically as well as mentally and
they harassed her, on demand of dowry as well. Meanwhile, a
Crl.Appeal No.847 of 2007 5 2024:KER:82312
marriage agreement was registered between her and the
1st accused, on 10.06.2002. Unable to bear the ill-treatment from
the part of the accused persons, Smt.Asmabi committed suicide by
consuming poison.
12. Since the accused were acquitted of the offences alleged
under Sections 304B and 306 of IPC, and no appeal has been
preferred by prosecution against that acquittal, it has become final,
and so, this Court is not expected to reconsider the evidence, with
respect to those offences.
13. In this appeal, we are concerned only with the
allegations under Section 498A read with Section 34 of IPC, for
which, the accused persons are convicted and sentenced.
14. Learned counsel for the appellants would contend that,
the harassment and cruelty mentioned in Section 498A of IPC must
be of the nature, sufficient to drive the wife to commit suicide or to
cause grave injury or danger to life, limb or health (whether
mental or physical), so as to convict the accused for that offence.
According to him, ordinary quarrel between spouses cannot come
under the definition of cruelty under Section 498A of IPC. So, he
would argue that the conviction and sentence of the accused
without any specific incidents of cruelty, or harassment on specific
Crl.Appeal No.847 of 2007 6 2024:KER:82312
demand of dowry, are liable to be set aside.
15. Learned Public Prosecutor drew the attention of this
Court to the testimony of prosecution witnesses, especially
PW3-the father of the deceased, PWs 4 and 5-her friends,
PW15-her maternal aunt, PW17-her brother, PW16-executive
member of the Mahal Committee and PW19-a neighbour, to say
that prosecution succeeded in proving its case that, the girl named
Asmabi committed suicide as she was subjected to cruelties by her
husband and in-laws, and also due to harassment on demand of
dowry.
16. PW3-her father categorically stated that, he came to
know about the love affair between his daughter Divya and
1st accused-Abdul Khader, only after aborting her pregnancy.
According to him, accused Nos.2 and 3 took her to the hospital of
Dr.Chakrapani, where her pregnancy was aborted forcibly.
Thereafter, on mediation talks between the Mahal Committee as
well as Temple Committee, his daughter Divya was sent along with
accused Nos.2 and 3, agreeing to conduct her marriage with the
1st accused, after attaining majority. She embraced Islam faith,
married the 1st accused and thereafter she lived with him in his
house along with accused Nos.2 to 4. She was ill-treated by them,
Crl.Appeal No.847 of 2007 7 2024:KER:82312
and the 2nd accused-mother-in-law was demanding dowry from her.
He further stated that, the 2nd accused told PW16-Moideen that,
she has to get dowry from the house of Asmabi.
17. PWs 4 and 5, who are the friends of deceased Asmabi,
deposed before court that, they had seen Asmabi at the house of
the accused few days before her death, and then she had told
them that she was ill-treated and harassed by the accused
demanding dowry, and moreover the 1st accused/husband was
avoiding her. PW15-the maternal aunt of the deceased also would
say that when she visited Asmabi at the house of the accused few
days prior to her death, she told her about the ill-treatment, and
harassment, she was suffering at the hands of the accused.
PW17-brother of the deceased would say that, on the date of
registration of marriage of Asmabi and the 1st accused, i.e. on
10.06.2002, he had seen the deceased in the jeep, while they were
going to the Sub Registrar's office. Then he saw a burn injury on
her hand, and on asking, she told him that, the 2nd accused-
mother-in-law inflicted that injury. PW15 also stated that the
deceased told her that her mother-in-law placed a heated spatula
on her hand, as she woke up late. PW16 as well as PW19 also
supported the case of prosecution that, the girl Asmabi was
Crl.Appeal No.847 of 2007 8 2024:KER:82312
subjected to cruelty and harassment by the accused persons, on
demand of dowry.
18. PW6-Doctor, who conducted autopsy on the body of the
deceased, certified that her death was due to poisoning. In
Ext.P3-post mortem certificate, the Doctor had noted an abrasion
of 0.5x0.5 cm on back of her left upper arm 8cm below armpit with
contusion of fat underneath. Ext.P12-Chemical Analysis Report will
show that, the black granular substance sent for analysis contained
a toxic organophosphorus compound named 'Phorate'.
19. The appellants are also not disputing the fact that
Asmabi committed suicide by consuming poison. The testimony of
PWs 3, 4, 5, 15, 16, 17 and 19 are sufficient to substantiate the
prosecution case that, the girl named Asmabi was driven to commit
suicide by the ill-treatment and harassment meted out to her by
her husband and in-laws on demand of dowry, which will come
under the definition of cruelty under Section 498A of IPC. There
are specific allegations of willful acts from the part of each
accused, spoken to by the witnesses aforesaid. So, according to
prosecution, there is no reason to interfere with the finding of the
trial court, that an offence under Section 498A read with Section
34 of IPC was made out against the accused.
Crl.Appeal No.847 of 2007 9 2024:KER:82312
20. Learned counsel for the appellants contended that,
Ext.P5 was only a marriage agreement between the 1st accused
and the girl named Asmabi, and it was not a valid marriage.
According to him, in order to convict the accused under Section
498A of IPC, there must be a valid marital relationship. Only
when, the husband or the relative of the husband of a woman,
subjects her to cruelty, he/she shall be punishable under Section
498A of IPC. So, his argument is that, a legal marriage is
essential, and only a legally wedded wife, can claim protection
under Section 498A of IPC, and in the absence of such a legal
relationship as husband and wife, there cannot be a conviction
under that Section.
21. In the decision Narayanan v. State of Kerala [2023
(6) KHC 427], this Court held that, a marriage agreement though
registered cannot be a substitute for a legally valid marriage, and
so it cannot be accepted as a valid marriage document. But, when
there is some form of marriage, either religious or customary,
which has the colour of a legal marriage, the woman can seek
protection under Section 498A of IPC, though later, for some
reason as to age, mental status, religion, consanguinity, spouse
living etc. etc., the marriage was found to be invalid in the eye of
Crl.Appeal No.847 of 2007 10 2024:KER:82312
law. In that case there was no marriage at all, and there was only
live-in-relationship on the basis of a marriage agreement. Under
that circumstance, the court held that a woman cannot seek
shelter under Section 498A of IPC, on the ground that they were
holding out to the society, as man and wife, by their long
cohabitation, after a marriage agreement.
22. Here, the scenario is entirely different. Deceased Asmabi
was professing Hindu faith and she fell in love with the 1st accused
who was a Muslim. She became pregnant from him but it was
aborted. Later, religious leaders intervened, and decided to
convert that girl into a Muslim, and so, she was taken to Ponnani
along with the letter of the Mahal Committee, where she was
administered 'Shahadath Kalima', the prayer for professing Islam.
Since 3½ months were remaining, for her to attain majority, their
marriage could not be conducted then, and so, she came back from
Ponnani and completed her religious teachings in the house of
PW16, and also in the house of one Mr.Pocker. The Nikah of the 1st
accused and the deceased was conducted in the house of Pocker as
deposed by PW16, and he further stated that, a gold chain of the
2nd accused-mother-in-law was given as 'mahar' to Asmabi.
Thereafter, Asmabi stayed along with the 1st accused and his family,
Crl.Appeal No.847 of 2007 11 2024:KER:82312
as his wife. PW19 also supported PW16 in all material particulars.
23. In the case on hand, there is clear statement from PW16
and PW19 that 'Nikah' of Asmabi with the 1st accused was
conducted at the house of Mr.Pocker. True that no records from the
Mahal is produced to prove the 'Nikah' or its date. PW16 was the
Executive Member of the Mahal Committee, and he is a responsible
person to say about the conversion of Asmabi and her 'Nikah' with
the 1st accused. There is nothing to show that Asmabi was a minor
at the time of 'Nikah'. Since 3½ months remained, for her to attain
majority, her marriage was not conducted immediately on
professing Muslim faith at Ponnani. Thereafter she came back from
Ponnani, attended religious teachings, and only thereafter her
'Nikah' was conducted. So, in all probability, she might have
attained majority by that time. No evidence is there from the part
of accused, to show that Asmabi was a minor at the time of 'Nikah'.
24. Learned Public Prosecutor would argue that even if
Asmabi was a minor at the time of Nikah, under the Mohammedan
Law a girl, who has attained puberty, can marry without the
consent of her parents. Article 251 of Mulla's Principles of
Mohammedan Law, held that, every Mohammedan of sound mind,
who has attained puberty, may enter into a contract of marriage.
Crl.Appeal No.847 of 2007 12 2024:KER:82312
Going by the explanation to the said Article, puberty is presumed,
in the absence of evidence, on completion of the age of 15 years.
25. Learned counsel for the accused would contend that,
even if Mohammedan Law permits a minor Muslim girl to marry on
attaining puberty, under secular law, it cannot be treated as a valid
marriage, as it will violate the provisions of the Prohibition of Child
Marriage Act, 2006 (hereinafter referred as the 'Child Marriage
Act'). Relying on a Single Bench decision of this Court in Moidutty
Musliyar v. Sub Inspector, Vadakkencherry Police Station,
Palakkad [2024 (5) KHC 187], he would argue that when the
Child Marriage Act prohibits child marriage, it supersedes the
Muslim personal law, and every citizen of the country is subject to
the law of the land, irrespective of his or her religion.
26. Based on the decision of this Court in Khaledur
Rahman v. State of Kerala and another [2022 (7) KHC 264],
learned counsel for the accused contended that, if one of the
parties to the marriage is a minor, irrespective of the validity of
their marriage under the Muslim personal law, penetrative sexual
intercourse with a child will come under the sweep of POCSO Act
(Protection of Children from Sexual Offences Act), even if it is
under the guise of a marriage. So, his argument is that, since the
Crl.Appeal No.847 of 2007 13 2024:KER:82312
'Nikah' of Asmabi with the 1st accused was conducted, while she
was a minor, it cannot be treated as a valid marriage under secular
law, and so an offence under Section 498A cannot be found against
the accused. But, going by the facts, there is nothing to show that
Asmabi was a minor at the time of 'Nikah'. If at all she was a
minor, under Muslim Law, a minor girl can contract marriage after
attaining puberty. Under Mohammedan Law, still that marriage is
recognised as valid.
27. In order to reconcile the decisions of Moidutty Musliyar
and Khaledur Rahman cited supra, with the facts of the case on
hand, we have to say that, when a particular act complained of,
constitutes an offence under a special statute, that statute will
prevail, and the personal law or customary law shall stand
abrogated to the extent of its inconsistency. It is trite law that
when the provisions of a statute are repugnant to, or contrary to
the customary law or personal law, in the absence of any specific
exclusion of the said customary or personal law, from the statutory
provisions, the statute will prevail. When a marriage which is valid
under the customary or personal law or any act committed within
that marriage are called in question as it constitute an offence
under a special statute, inviting penal consequences, no doubt, the
Crl.Appeal No.847 of 2007 14 2024:KER:82312
special law will prevail, in spite of legality of that marriage under
the customary or personal law. But the marriage under the
customary or personal law, which is otherwise valid, has to be
treated as valid between parties to that marriage for all practical
purposes, unless and until it is challenged by any of the parties to
that marriage, and declared void on any valid grounds.
28. In the case on hand, the accused persons were not
disputing the Nikah between the deceased and the 1st accused as
per Muslim Personal Law. In the 313 questioning of the 1st accused,
to every question put to him regarding his marriage with the
deceased, his answer was in the affirmative. There is no dispute
with respect to the fact that the 1st accused married Asmabi after
attaining puberty. If at all she was a minor at the time of
marriage, after attaining majority, they acknowledged that
marriage and never challenged their marriage contracted under the
Muslim Law. The deceased accepted Islam faith and also accepted
the Muslim name Asmabi and the prosecution evidence is sufficient
to show that even her funeral was in accordance with the Muslim
religious rites. So, even though there was no registration of
marriage under secular law, marriage between the deceased
Asmabi and the 1st accused was contracted as per Muslim Personal
Crl.Appeal No.847 of 2007 15 2024:KER:82312
Law and it was acknowledged by both of them.
29. The distinction we can draw from the decisions Moidutty
Musliyar and Khaledur Rahman cited supra to the case on hand is
that, the marriage of Asmabi with the 1st accused was never called
in question under any special statute. True that when a particular
act complained of constitutes an offence under a special
enactment, even if it is committed within a marriage recognised
under personal law, the special statute will prevail, in the absence
of any specific exclusion of the customary or personal law from the
statutory provisions.
30. Here, there is nothing to show that Asmabi was a minor
at the time of 'Nikah'. If at all she was a minor, she had attained
puberty, and so, that marriage was valid under Mohammedan Law.
That marriage was never called in question under the Child
Marriage Act or any other special enactment inviting penal
provisions. There was clear admission from the accused that,
Asmabi was the wife of the 1st accused. Their 'Nikah' was
conducted at the house of Mr.Pocker as deposed by PW16, and that
marriage is still recognised under Muslim personal law. It was not
a case of 'no marriage' and only 'live-in-relationship'. Based on
Narayanan's decision cited supra, we can say that if there was
Crl.Appeal No.847 of 2007 16 2024:KER:82312
some form of marriage, religious or customary, which has the
colour of a legal marriage, then also the woman can seek
protection under Section 498A, though later, for some reason, that
marriage is found to be invalid in the eye of law.
31. In Reema Aggarwal vs. Anupam and others [(2004)
3 SCC 199], the Apex Court held that, the expression 'husband'
would cover a person who enters into a marital relationship and
under the colour of such proclaimed or feigned status of husband
subjects the woman concerned to cruelty or coerces her in any
manner or for any purposes enumerated in Sections 304B/498A,
whatever be the legitimacy of the marriage. Paragraph 18 of that
judgment reads as follows:
"18. The concept of "dowry" is intermittently linked with a
marriage and the provisions of the Dowry Act apply in
relation to marriages. If the legality of the marriage itself is
an issue, further legalistic problems do arise. If the validity of
the marriage itself is under legal scrutiny, the demand of
dowry in respect of an invalid marriage would be legally not
recognizable. Even then the purpose for which Sections 498-A
and 304-B IPC and Section 113-B of the Indian Evidence Act,
1872 (for short "the Evidence Act") were introduced, cannot
be lost sight of. Legislation enacted with some policy to curb
and alleviate some public evil rampant in society and
effectuate a definite public purpose or benefit positively
requires to be interpreted with a certain element of realism
Crl.Appeal No.847 of 2007 17 2024:KER:82312
too and not merely pedantically or hypertechnically. The
obvious objective was to prevent harassment to a woman
who enters into a marital relationship with a person and later
on, becomes a victim of the greed for money. Can a person
who enters into a marital arrangement be allowed to take
shelter behind a smokescreen to contend that since there was
no valid marriage, the question of dowry does not arise? Such
legalistic niceties would destroy the purpose of the provisions.
Such hairsplitting legalistic approach would encourage
harassment to a woman over demand of money. The
nomenclature "dowry" does not have any magic charm
written over it. It is just a label given to demand of money in
relation to marital relationship. The legislative intent is clear
from the fact that it is not only the husband but also his
relations who are covered by Section 498-A. The legislature
has taken care of children born from invalid marriages.
Section 16 of the Marriage Act deals with legitimacy of
children of void and voidable marriages. Can it be said that
the legislature which was conscious of the social stigma
attached to children of void and voidable marriages closed its
eyes to the plight of a woman who unknowingly or
unconscious of the legal consequences entered into the
marital relationship? If such restricted meaning is given, it
would not further the legislative intent. On the contrary, it
would be against the concern shown by the legislature for
avoiding harassment to a woman over demand of money in
relation to marriages...".
32. Adopting the spirit of Reema Aggarwal's case, we can
safely conclude that the contention taken up by learned counsel for
Crl.Appeal No.847 of 2007 18 2024:KER:82312
the appellants that, since there was no legal marriage between the
deceased and the 1st accused, there cannot be a conviction under
Section 498A of IPC, is not tenable.
33. As we have seen, prosecution succeeded in proving the
guilt of the accused under Section 498A read with Section 34 of
IPC. So, this Court finds no reason to interfere with the conviction
of the accused by the trial court, for the offence under Section
498A read with Section 34 of IPC.
34. Coming to the sentencing part, learned counsel for the
appellants would submit that, the incident occurred in the year
2002, and 22 years passed since then. The 1st accused was a boy
aged 19 at the time of commission of offence and he fell in love
with the deceased girl. The other accused persons are his parents
and brother. The specific allegation against the 3rd
accused-father-in-law was that, he confined the deceased in a
room, and the allegation against the 4th accused-brother-in-law
was that he slapped on her face. But, the allegations against
accused Nos.1 and 2 are quite serious which ultimately drove that
girl to commit suicide. An 18 year old girl was driven to commit
suicide because of the ill-treatment and harrassment from the part
of her husband and in-laws and that matter has to be viewed
Crl.Appeal No.847 of 2007 19 2024:KER:82312
seriously, and so they are not entitled to get the benevolence
under the Probation of Offenders Act also. But, considering the
fact that the 1st accused was aged only 19 and the other accused
are his parents and brother, this Court is inclined to modify and
reduce the sentence as follows:-
(i) A1 and A2 are sentenced to undergo simple
imprisonment for 1½ years (18 months) and to pay fine of
Rs.25,000/- each, with a default sentence of simple imprisonment
for three months each.
(ii) A3 and A4 are sentenced to undergo simple
imprisonment for four months each and to pay fine of Rs.10,000/-
each, with a default sentence of simple imprisonment for two
months each.
(iii) If the fine amount is realised, Rs.50,000/- shall be given
to PW3-the father of the deceased as compensation under Section
357(1) of Cr.P.C. If PW3 is no more, the compensation amount
shall be paid to his legal heirs.
(iv) Set off is allowed for the period undergone by the
accused in custody, during trial.
Registry to forward a copy of this judgment along with the
TCR to the trial court forthwith, for executing the sentence in
Crl.Appeal No.847 of 2007 20 2024:KER:82312
accordance with law, without further delay.
The appeal is allowed to the extent as above.
Sd/-
SOPHY THOMAS
JUDGE
smp
