Madras High Court
Samuvel Satishkumar vs The State on 8 September, 2022
Crl.O.P.No.11644 of 2021 and
Crl.M.P.No.6693 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 08.09.2022
CORAM:
THE HON'BLE Ms.JUSTICE R.N.MANJULA
Crl.O.P.No.11644 of 2021 and
Crl.M.P.No.6693 of 2021
Samuvel Satishkumar
... Petitioner
Vs.
1.The State,
Rep. by the Inspector,
All Women Police Station,
Vandavasi,
Tiruvannamalai District,
Tamil Nadu 604 406.
(Crime No.7 of 2021)
2.Radhika
... Respondents
PRAYER : Criminal Original Petition is filed under Section 482 of the Code of
Criminal Procedure, to call for the records of the proceedings in Crime No.7 of
2021 on the file of the 1st respondent police and quash the same as illegal and
without jurisdiction.
For Petitioner : Mr.K.Sharath Chandran
For Respondents : Mr.A.Damodaran, APP for R1
Mr.S.Cholarasan for R2
1/15
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ORDER
This Criminal Original Petition has been preferred to call for the records
of the proceedings in Crime No.7 of 2021 on the file of the 1st respondent
police and quash the same.
2. Heard Mr.K.Sharath Chandran, learned counsel for the petitioner,
Mr.A.Damodaran, learned Additional Public Prosecutor appearing for the first
respondent and Mr.S.Cholarasan, learned counsel for the second respondent
and also perused the materials placed on record.
3. The short facts of the case are as follows:
The case has been registered against the petitioner for the offences
under Sections 498-A and 417 I.P.C on the basis of the complaint of the
second respondent by alleging that the accused fell in love with her and on
11.11.2019, he married her in the presence of her younger sister and was
living with her in her mother's place. Subsequently, they took a separate house
and they were living together. During that course, she got conceived. On the
advice of the doctor, the foetus was aborted and once again she got conceived.
She came to know that the accused was going to get engaged with an another
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woman and the betrothal function was fixed on 23.04.2021. So the defacto
complainant informed the said facts to the bride who is proposed to be
engaged for the accused. Later, she also complained the matter to the pastor of
Thiresapuram Church. Since she did not receive any proper response from the
petitioner, she had filed the complaint.
4. The learned counsel for the petitioner submitted that the defacto
complainant already got married to one Raghu with whom she had even
delivered a baby by name Charumathi; since the defacto complainant is a
married woman and she was not a legally wedded wife of the accused, she
cannot file any complaint for making out a case under Section 498(A) of I.P.C.
His further submission is that when the defacto complainant has already got
married, there cannot be any promise to marry her once again; even if such
promise is given, that cannot be a legal promise; so, no legal action can be
initiated by the defacto complainant by alleging that a legal promise was not
fulfilled; further, on the alleged promise, the defacto complainant has not done
anything or omitted to do anything which would cause damage or harm to her
body, mind, reputation or property. In support of the above contention, he
cited the judgment in the case of K.U.Prabhu Raj Vs. State of Sub Inspector
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of Police, A.W.P.S, Tambaram and Another reported in 2012 3 L.W.770.
5. Mr.A.Damodaran, learned Additional Public Prosecutor appearing
for the first respondent submitted that only in view of the promise given by the
petitioner, the defacto complainant started to have physical intimacy with the
accused and because of that, she got conceived twice; she had even undergone
abortion at some point of time and that would have definitely caused bodily
harm to her; having made the defacto complainant to believe that the accused
would marry her, he had sexual relationship with her and later he opted to
marry some other person and the act of the accused will fall under Section 417
of I.P.C. though not under Section 498(A) of I.P.C; it is further submitted that
the marriage between the defacto complainant and Raghu got cancelled
between themselves and they even executed a marriage cancellation deed.
6. The learned counsel for the second respondent submitted that the
petitioner had cheated her by making her to believe that she got married to him
and persuaded her to have sexual relationship with him; in the community to
which the second respondent belongs, customary divorce is allowed and hence
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the marriage revocation deed was entered between parties; hence it is right to
charge the accused for the offences under Sections 498-A and 417 I.P.C.
7. The fact that the defacto complainant was originally married to one
Raghu is not denied. But, the contention of the second respondent / defacto
complainant is that the marriage between the defacto complainant and Raghu
got revoked by virtue of a revocation deed. It is needless to state that a
marriage cannot be dissolved by way of executing a revocation deed privately
between the couple. By way of a marriage revocation deed, at the best, the
couple can workout the terms for dissolving their marriage and on the basis of
the revocation deed, they can file a petition for getting divorce by mutual
consent.
8. As per Section 4 of the Hindu Marriage Act all customs and usage
which had been in practice prior to the coming into force of the Act will cease
to have any effect. The Hindu Marriage Act came into force on 18.05.1955
and Section 4 of the Act reads as under:
“4. Overriding effect of Act:
Save as otherwise expressly provided in this Act,—
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(a) any text, rule or interpretation of Hindu law or any custom
or usage as part of that law in force immediately before the
commencement of this Act shall cease to have effect with re-
spect to any matter for which provision is made in this Act;
(b) any other law in force immediately before the commence-
ment of this Act shall cease to have effect in so far as it is in-
consistent with any of the provisions contained in this Act.”
9. So, the marriage between Raghu and the defacto complainant was not
dissolved legally and it is still in subsistence. Under such circumstances, it is
not right to invoke the penal provision under Section 498(A) of I.P.C. For the
sake of convenience, the provision under Section 498(A) of I.P.C., is extracted
hereunder:
“498(A). Husband or relative of husband of a woman
subjecting her to cruelty – Whoever, being the husband or the
relative of the husband of a woman, subjects such woman to
cruelty shall be punished with imprisonment for a term which
may extend to three years and shall also be liable to fine.
For the purpose of this section, “Cruelty” means-
(a) any wilful conduct which is of such a nature as is
likely to drive the woman to commit suicide or to cause grave
injury or danger to life, limb or health (whether mental or
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physical) of the woman; or
(b) harassment of the woman where such harassment is
with a view to coercing her or any person related to her to
meet any unlawful demand for any property or valuable
security or is on account of failure by her or any person
related to her to meet such demand.”
10. The above provision would state that perpetrator should be the
husband or the relative of husband of the aggrieved woman. Since the defacto
complainant is the wife of another man, she cannot claim herself as the wife of
the petitioner and file a complaint against him for the offence under Section
498(A) of I.P.C. In this regard, it is appropriate to refer the judgment of this
Court rendered in Crl.O.P.No.26832 of 2014 dated 08.08.2019. In the said
judgment, a case of similar nature was dealt and it is held as under:
“16. It is clear from the above judgments that only a
legally wedded wife can claim protection under Section 498 A
of IPC and in the absence of such a legal relationship as
husband and wife, there cannot be a conviction under Section
498 A of IPC. The three member Bench of the Hon'ble
Supreme Court, that has been referred in both the judgments,
categorically holds that in order to attract an offence under
Section 498 A of IPC, the subsistence of a valid marriage is a
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sine-qua-non. Where the marriage itself is null and void, on
account of the subsistence of another valid marriage, the
prosecution cannot sustain a charge under Section 498 A of
IPC.”
11. When there is no legal relationship between the petitioner and the
defacto complainant as husband and wife, the first respondent cannot invoke
the provisions of Section 498(A) against the petitioner.
12. The next penal provision is Section 417 of I.P.C. The categorical
contention of the learned Additional Public Prosecutor is that the petitioner
made the complainant to believe that he would marry her and on that
assurance, the complainant surrendered her personal self and allowed him to
have physical relationship with her and in view of the said relationship, she
got conceived twice. It is submitted by the prosecution that the petitioner
without fulfilling his promise had chosen to marry an another woman. The
conduct of the petitioner is nothing but cheating.
13. For the sake of convenience, Section 417 of I.P.C., is extracted
hereunder:
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“417. Punishment for cheating – Whoever cheats shall
be punished with imprisonment of either description for a
term which may extend to one year, or with fine, or with
both.”
14. As stated already, the complainant is a married woman. When her
marriage with her husband Raghu is not dissolved, there is no reason for her to
believe that another man like the petitioner would marry her. Even for the sake
of arguments, it is taken that the petitioner had assured her to marry, that
cannot happen so long as the marriage of the complainant with Raghu is
subsisting. In the complaint it is stated that on 11.11.2019, the petitioner
married her in the presence of her own sister by name Selvi. In that case. the
complainant cannot have any grievance about the alleged promise. Because
according to her, a marriage was held between herself and the petitioner in the
presence of her own sister. However, the alleged marriage cannot have any
legal sanctity due to her earlier marriage with Raghu, which is still in force.
15. The defacto complainant had taken a risk of moving with the
petitioner and in that course, she got conceived. The petitioner did not deny his
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relationship with the defacto complainant. Being an unmarried man, he felt it
comfortable to live with a person who had already married, without any
matrimonial commitment with her. He went to the extent of having physical
intimacy with her. The complainant had also consented to have such
relationship with the second respondent. The second respondent / defacto
complainant is a major and a mother of a child born. Hence it is possible for
her to understood the consequences of her decisions and actions. The
relationship between the defacto complainant and the petitioner appears only
as a relationship by consent between two adults or in other words, it is a kind
of living arrangement made between the petitioner and the defacto
complainant. Having opted to live with the petitioner in such an arrangement,
where the parties to the relationship does not have any commitments similar to
marriage, the defacto complainant cannot say that she was cheated by the
petitioner.
16. In this connection, the learned counsel for the petitioner cited a
decision in the case of K.U.Prabhu Raj Vs. Sub Inspector of Police,
A.W.P.S, Tambaram and Another reported in 2012 3 L.W.770. The relevant
paragraph is extracted hereunder:
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“17. The learned counsel for the second respondent
would further submit that the offence involved in this case
falls within the ambit of the third limb of Section 415 I.P.C as
enumerated above. According to the learned counsel, but for
the promise made by the petitioner, the daughter of the
second respondent would have married someone-else and
settled down in her life. Thus, according to him, the petitioner
has committed a clear offence of cheating. In my considered
opinion, it is not so. As has been held by the Division Bench
of the Calcutta High Court in Abhoy Pradhan v. State of W.B
case (cited supra), mere promise to marry and later on
withdrawing the said promise will not amount to an offence of
cheating at all. On such false promise to marry, the person to
whom such promise was made should have done or omitted to
do something that he would not done or omitted to do but for
the deception. In this case, absolutely, there are no materials
available on record to show that because of the promise made
by the petitioner, the daughter of the second respondent has
done anything or omitted to do something which has the
tendency to cause damage or harm to the body or mind or
reputation or property of the daughter of the second
respondent. In the absence of the same, the entire allegations
found in the records, in my considered opinion, would not
make out an offence under Section 417 or 420 I.P.C., at all.”
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17. It might be true that the impact of the failed relationship would be
much on the defacto complainant than the petitioner, who had chosen to marry
an another woman of his choice. But that cannot be the reason to invoke the
penal provisions to punish the petitioner. The assurance of marriage to a
person who is already married cannot be called as deception within the context
of Section 417 of I.P.C. It is one more instance where the parties need to be
careful about the choices and decisions taken to shape up their personal life.
The materials on the face of it does not make out a case against the petitioner
for the offences under Section 498(A) & 417 of I.P.C.
18. The learned counsel for the complainant/second respondent
submitted that the first respondent ought to have invoked the relevant
provisions of The Scheduled Castes and the Scheduled Tribes (Prevention of
Atrocities) Act. From the materials available on record the caste of the
complainant is not known. However, if the first respondent gets any fresh
materials for invoking the Special Act or about the quality of the consent of the
complainant to have sexual relationship with the petitioner in the given set of
facts, the first respondent is at liberty to re-open the case and do further
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investigation by getting appropriate permission under sec. 173(8) Cr.P.C.
19. In the result, this Criminal Original Petition is allowed and the
proceedings in Crime No.7 of 2021 on the file of the 1st respondent police is
quashed. The first respondent is at liberty to re-open the case by getting proper
permission for further investigation under Section 173(8) Cr.P.C, if any fresh
materials are obtained with regard to the facts as observed already.
Consequently, connected miscellaneous petition is closed.
Index: Yes/No 08.09.2022
Speaking / Non Speaking Order
gsk
To
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Crl.O.P.No.11644 of 2021 and
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1.The Inspector,
All Women Police Station,
Vandavasi,
Tiruvannamalai District,
Tamil Nadu 604 406.
2.The Public Prosecutor,
High Court of Madras.
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R.N.MANJULA, J.
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08.09.2022
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