Madras High Court
Mariappan vs State Rep By on 19 January, 2022
Crl.R.C. No.464 of 2014
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 19.01.2022
CORAM :
THE HON'BLE MR.JUSTICE D.BHARATHA CHAKRAVARTHY
Crl.R.C. No.464 of 2014
Mariappan ... Petitioner
Versus
State Rep by
Inspector of Police,
All Women Police Station,
Pollachi Sub Division,
In crime No.17 of 2009,
Coimbatore District. ... Respondent
Criminal Revision Petition filed under Section 401 of Criminal
Procedure Code, to call for records and to set aside the Judgment in C.A.No.26
of 2013 dated 06.11.2013 on the file of the Principal Sessions Judge,
Coimbatore, Coimbatore Division and conformed by the Judicial Magistrate
No.1 at Pollachi Coimbatore Division in C.C.No.49 of 2010 dated 22.01.2013
and allow the above Criminal Revision petition.
For Petitioner : Mr.P.Kalimuthu
For Respondent : Mr.L.Baskaran,
Government Advocate (Crl.side)
ORDER
This Criminal Revision is filed by the petitioner/accused no.1,
aggrieved by the Judgment of the Learned Judicial Magistrate No.I, Pollachi,
dated 22.01.2013 in C.C.No.49 of 2008, whereby, the petitioner/accused was
https://www.mhc.tn.gov.in/judis
Crl.R.C. No.464 of 2014
found guilty of the offence under Section 498 (A) of Indian Penal Code and was
sentenced to undergo one year Rigorous Imprisonment and to pay a fine of
Rs.2,000/-, in default of payment of fine, to undergo six months Simple
Imprisonment and the Judgment of the Learned Principal Sessions Judge,
Coimbatore, dated 05.11.2013 in Crl.A.No.26 of 2013, thereby dismissing the
appeal and confirming the conviction and sentence imposed against the petitioner
/ accused.
2.On 07.08.2009, P.W.1 appeared before P.W.7, the Sub-Inspector of
Police of All Women Police Station, Pollachi, lodged a complaint, stating that
the first accused viz., Mariappan, is a relative and believing his promise that he
will marry her, both of them engaged in a physical relationship and while so, the
first accused/Mariappan, after making her pregnant was refusing to live with her.
Therefore, with the help of a political association and common friends, a
Panchayat was conducted, whereunder the accused/petitioner accepted the
relationship and married her at the party premises on 28.02.2007. However, he
was living with her for only three days and thereafter, he went to Tiruppur.
Thereafter, he telephonically asked for dowry, and when the complainant's family
members refused to give the same, the accused refused to live together stating
https://www.mhc.tn.gov.in/judis
Crl.R.C. No.464 of 2014
that the child itself was not born to him. Therefore, P.W.1 requested action to be
taken against the first accused/Mariappan, the second accused/ Duraiyan, his
father and the third accused/ Subbammal his mother. Upon such complaint P.W.7
registered a case in Crime No.17 of 2009, for the alleged offences under Sections
498(A), 506(i) of the Indian Penal Code and Section 4 of the Dowry Prohibition
Act. After investigation, on 07.04.2010, P.W.7 filed a final report against all the
three accused, proposing them guilty of the offences under Section 498(A) &
506(i) of Indian Penal Code.
3.The Learned Judicial Magistrate, No.1, Pollachi, took the case on
file in C.C.No.49 of 2010, and upon summoning and furnishing the copies as per
Section 207 of Code of Criminal Procedure, all the three accused denied the
charges and stood trial. Thereafter, the prosecution examined P.W.1 to P.W.7
and marked Ex.P-1 to Ex.P-6 and material object M.O-1 series was produced.
Upon being questioned about the adverse evidence and circumstances on record,
as per Section 313 of the Code of Criminal Procedure, the accused denied the
same as false.
4.The Trial Court, thereafter, proceeded to hear the Learned Assistant
https://www.mhc.tn.gov.in/judis
Crl.R.C. No.464 of 2014
Public Prosecutor Grade-II, appearing for the State and the Learned Counsel
appearing on behalf of the accused and by Judgment dated 22.01.2013,
considering the evidence on record, came to the conclusion that the charge under
Section 506(i) of IPC., and Section 498(A) against the accused no.2 & 3 were
not proved and acquitted them. As far as the first accused is concerned, the Trial
Court found that the evidence of P.W.1 read with declaration form given by him
in Ex.P-5 and the marriage document Ex.P-6 clearly shows that after getting
married, without any basis, whatsoever, he has disowned the paternity of the
child as not having born to him , besides denying the very factum of marriage
itself. Considering the same as amounting to cruelty within the meaning of
Section 498(A) of IPC., the Trial Court convicted the first accused and sentenced
him as aforesaid.
5.Aggrieved by the Judgment of the Trial Court, the petitioner/accused
filed an appeal in Crl.A.No.26 of 2013, whereby, after independently appraising
the evidence on record, the Learned Principal Sessions Judge, Coimbatore,
considered the effect of Ex.P-6 being a document, which recorded the actual
factum of marriage and after considering the Section 7-A of the Hindu Marriage
Act, concluded that it does not require any particular form to be a valid marriage.
https://www.mhc.tn.gov.in/judis
Crl.R.C. No.464 of 2014
The Appellate Court also held that once the defence that there is no marriage
goes, and the marriage is established and thereby, the conduct of the petitioner
automatically exposed himself to the offence of cruelty and therefore, confirmed
the conviction and sentence imposed by the Trial Court. Aggrieved by the same,
the present revision is laid before this Court.
6.Heard Mr.P.Kalimuthu, Learned Counsel appearing on behalf of the
petitioner/accused and Mr.L.Baskaran, Learned Government Advocate (criminal
side), appearing on behalf of the prosecution.
7.The contention of Mr.P.Kalimuthu, learned Counsel for the
petitioner/accused is that so as to constitute an offence under Section 498(A) of
IPC, the petitioner and P.W.1, ought to have lived as husband and wife, at least
for some period of time, but in the instant case, admittedly, they lived only for
three days, and even in the three days, the petitioner/accused, came home only in
the night and there is no allegation of any cruelty whatsoever being committed by
him in the said three days. After the said three days, because the marriage was
performed in an atmosphere of duress, the petitioner had gone away and started
leading his life in his own way. It is P.W.1, who had been chasing the petitioner
https://www.mhc.tn.gov.in/judis
Crl.R.C. No.464 of 2014
and lodging the complaints. Therefore, when the complaint proceedings are being
lodged, taking a defence that there is no valid marriage and that the child was not
born to him would never amount to committing cruelty on P.W.1. Therefore, both
the Trial Court as well as the First Appellate Court omitted to consider this
crucial aspect, which has resulted in grave injustice to the petitioner/accused. It is
his further submission that the marriage was completely not proved and further
steps were also not taken to prove paternity of the accused on the child. Under
such circumstances, fully based on the illegal act of performing of marriage in
the political party office, the entire complaint is premised, and therefore, he
would submit that it is the bounden duty of the prosecution, to first establish the
factum of marriage and then after the establishment of marriage, the factum of
cruelty has to be established, which is missing in this case. He would further
submit that there is no clear-cut evidence as to when and in what manner the
petitioner/accused harassed P.W.1/complainant, by claiming that the child was
not born to him. Therefore, in the absence of the same, he would urge this Court
to interfere with the orders passed by the Courts below in exercise of the
revisional jurisdiction and to acquit the petitioner/accused.
8.Per contra, Mr.L.Baskaran, learned Government Advocate (Criminal
https://www.mhc.tn.gov.in/judis
Crl.R.C. No.464 of 2014
Side) would submit that the reading of the evidence of PW.1 would clearly prove
the allegations raised by the prosecution. PW.1 has deposed that when she had
actually went to lodge a complaint for counseling, the accused appeared before
the appropriate authority and denied that the child did not born to him and
therefore, that would by itself amount to cruelty. Apart from this, even in the
Court, P.W.1 has been specifically cross examined on behalf of the petitioner
that the child was not born to him, which would show his intention and stand that
the child is not born to him. Further, he would submit that the evidence of P.W.1
would clearly established that willingly the accused performed the marriage, and
the marriage photographs, which were marked as M.O-1 series would fortify the
same. This was also corroborated by the person, who was examined as P.W.5,
who conducted the marriage and coupled with the documents Ex.P-5 declaration
form and Ex.P-6 marriage document. He would further submit that the Lower
Appellate Court has correctly appraised the legal position by considering Section
7-A of the Hindu Marriage Act and has held that there was a valid marriage and
once there is a valid marriage, the accused, who immediately deserted P.W.1 and
thereafter, caused the gravest amount of mental cruelty by questioning the
validity of the marriage itself as well as by questioning the paternity of the child,
had committed cruelty. Therefore, he would submit that the conviction and
https://www.mhc.tn.gov.in/judis
Crl.R.C. No.464 of 2014
sentence of the Courts below does not call for any interference whatsoever.
9.I have considered the rival submissions. I have gone through the
materials on record.
10.In this case, though the counsel for the petitioner has made a valiant
effort to establish the fact that there was no cruelty at all and all the other
allegations already being disbelieved by the Trial Court and there was nothing
left for the Courts below to convict the petitioner/accused. I am afraid, I am able
to agree with the contention of the learned counsel of the petitioner. The only
piece of evidence standing against the petitioner is the evidence of P.W.1,
whereby she states that “ gpd;g[ m';fpUe;J bghs;shr;rp midj;J
kfsph; fhty; epiyaj;jpw;F me;j kDit mDg;gpitj;jhu;fs;/
mjd; gpd;g[ midj;J kfspu; fhty; epiyaj;jpy; tprhupj;J
vd;id ft[d;rpyp'; nfl;L 1 tJ vjpupaplk; nfl;lbghGJ
FHe;ij vd;DilaJ my;y vdf; Twptpl;lhu;” Therefore, whenever
P.W.1 gave a petition to the authorities to join together in life, the same has been
stoutly refused by the petitioner/accused, by stating that the child was not born to
him. This by itself amounts to mental cruelty and already, I myself by the
Judgment in Crl.R.C.No.333 of 2014, Nakkeeran @ Jeroanpandy -Vs- State
(Judgment dated 07/12/2021), by following the Judgment of the Hon'ble
https://www.mhc.tn.gov.in/judis
Crl.R.C. No.464 of 2014
Supreme Court of India in K.V.Prakash Babu -Vs- State of Karnataka1, have
held that even mental cruelty in appropriate cases, if the abnormal behaviour
affects the mental wellbeing of the wife in a grave manner can be held as cruelty
within the definition of Section 498(A) of IPC. This is only piece of evidence is
against the petitioner/accused, but, however, the same is enough for confirming
the finding of the guilt by the Trial Court as well as the First Appellate Court and
I, accordingly, reject the submissions made on behalf of the petitioner/accused.
11.But, however, considering that the occurrence had happened in the
year 2009; the fact that P.W.1 is no more and there is no possibility of re-
approachment on account thereof; Considering the efflux of time, and the age of
the petitioner/accused, who was 25 years as on date of the commission of the
offence and now, he being 38 years old; I am inclined to reduce the punishment
from one year rigorous imprisonment to that of six months simple imprisonment.
The fine amount shall remain unaltered.
12.Accordingly, the Criminal Revision Case is partly allowed as
indicated above.
19.01.2022
Index : yes
Internet : yes
1 (2017) 11 SCC 176
https://www.mhc.tn.gov.in/judis
Crl.R.C. No.464 of 2014
Speaking order
klt
D.BHARATHA CHAKRAVARTHY, J.
klt
To
1.The Principal Sessions Judge, Coimbatore, Coimbatore Division.
2.The Judicial Magistrate No.1 at Pollachi Coimbatore Division.
3.The Public Prosecutor, High Court of Madras.
4.The Inspector of Police,
All Women Police Station, Pollachi Sub Division, Coimbatore District.
Crl.R.C. No.464 of 2014
19.01.2022
https://www.mhc.tn.gov.in/judis
