The Allahabad High Court while allowing an application said that 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).
A Single Bench of Justice Arun Kumar Singh Deshwal passed this order while hearing an application under section 482 filed by Akhilesh Keshari And 3 Others.
The application under Section 482 Cr.P.C has been filed for quashing the entire proceeding of the charge-sheet dated 06.12.2019 as well as the cognizance order dated 10.01.2020 in Case under Sections 498-A, 323, 504, 506 and Section 3/4 D.P Act, Police Station Mahila Thana, District Sonbhadra pending in the Court of Civil Judge (Junior Division)/C.A.W, Robertsganj, Sonbhadra.
The facts of the case are that opposite party no 2 had lodged an F.I.R dated 08.06.2019 under Section 498-A, 323, 504, 506 I.P.C & 3/4 D.P Act, 1961 against applicants alleging that she got married to applicant no 1, six years back and out of their wedlock three children were also borne.
However, applicants had started harassing her for dowry demands and subsequent applicants had also beaten her. Police after investigation had submitted a charge-sheet dated 01.12.2019 against the applicants under Section 498-A, 323, 504, 506 I.P.C & Section 3/4 D.P Act and cognizance was also taken on 10.01.2022.
Counsel for the applicants contends 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 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.
In support of his contention, counsel for the applicants has relied upon a judgment of the Apex Court in the case of Shivcharan Lal Verma and another vs State of Madras 17 Vol 15 SCC 369 in which the Apex Court observed 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.
Per contra, A.G.A has relied upon the judgment of Reema Agarwal (supra) and 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.
The Court observed that,
From the perusal of Section 498-A I.P.C, it is explicit that to attract the ingredients of the 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.
From the perusal of the judgments mentioned above of the Apex Court, it is clear that strict interpretation is required when interpreting the word husband in Section 498-A I.P.C as the I.P.C is a penal provision, not beneficial legislation where the liberal interpretation is permissible. Therefore, the Court holds that proceeding under Section 498-A I.P.C by the opposite party no 2, who is not the legally wedded wife of applicant no 1, is not maintainable against applicants.
The Court observed that,
From the perusal of Section 2 of the D.P Act, dowry may be given at, before or after the marriage. Therefore, for the dowry, the performance of marriage is not necessary, and even a marriage contract is sufficient. If a male and female contracted for marriage and cohabiting together and the male partner makes any dowry demand from the female partner, then ingredients of Sections 3 and 4 of the D.P Act are attracted.
In the case, appellants and opposite party no 2 had been living as husband and wife and three children were also borne from their co-habitation 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.
From the perusal of the record, it is clear that there is sufficient material to make out a prima facie case under Section 323, 504, and 506 IPC.
“In view of the above analysis, the proceeding under Section 498-A IPC in Case is hereby quashed. However, the proceeding under Section 323, 504, 506 IPC and Section 3/4 of D.P Act in Case is maintained. Therefore, the Court below is free to proceed against the applicants under Section 323, 504, 506 IPC and Section 3/4 of the D.P Act”, the order reads.
With the aforesaid observations, the Court allowed the application.