The Allahabad High Court while allowing an application held that proceedings under Section 498A IPC by the second wife is not maintainable.
A Single Bench of Justice Anish Kumar Gupta passed this order while hearing an application under section 482 filed by Maan Singh And 2 Others.
The application under Section 482 Cr.P.C has been filed to quash the entire proceeding of Complaint Case under section 498A, 323, 504, 506 IPC and 3/4 DP Act, Police Station Sarai Akil, District Kaushambi pending in the Court of CJM, Kaushambi.
The facts of the case are that the instant complaint case has been filed by the opposite party no 2 alleging therein that the marriage of applicant no 1 with the opposite party no 2 was solemnized on 27.04.2012 and since after the marriage she was discharging her matrimonial obligations up to four years without any dispute.
It is further alleged that the applicant no 1 was already married prior to the marriage of the opposite party no 2 with the applicant and out of that wedlock there was a child born which is applicant no 3 herein.
It is alleged in the complaint that after four years of marriage the applicant herein started harassing the opposite party no 2 for demand of dowry and the applicants were not happy with the gifts and dowry given by the father of the opposite party no 2. When the aforesaid was intimated to the father by the opposite party no 2 he came and there was a settlement and they continue to live together.
Subsequently, it has been alleged that on 17.10.2016 all the opposite parties forcibly took her in a car and dropped her at village Pure-Ghasiram and told that unless she brings Rs 2 lakh and a car they will not take her back.
It is further alleged that the intimation of such incident was given to the police, when no action was taken the complaint case was filed by opposite party no 2 under section 498A, 323, 504, 506 IPC and 3/4 D.P Act.
Thereafter, the statements of witnesses were recorded under section 200 and 202 Cr.P.C. In her statement recorded under section 200 Cr.P.C the opposite party no 2 has alleged that the applicant no 2 is the first wife of the applicant no 1 and she was residing with her in the same house. However, it has been stated that at the time of marriage the applicant no 1 had misrepresented that his first wife had died.
It is further stated that she did not raise any objection and did not file any case for such misrepresentation as she thought that she and the applicant no 2 will live together as sisters and wives of applicant no 1. The aforesaid averments have also been supported by the witnesses Dharmraj and Nirmala Devi and both of them had categorically admitted that till four years from the date of marriage i.e 27.04.2012, there was no dispute and there was no demand of any sought by the applicants herein, however the demands have been raised by the applicants after four years of marriage.
Admittedly as per the complaint, the date of marriage is 27.04.2012 and the date when opposite party no 2 was finally thrown out from the house is 17.09.2016 thereby till the end of the April, 2016 there was no dispute of any kind with regard to the dowry and there was no harassment for dowry. Subsequently the allegations of demand of dowry have been made.
Counsel for the applicants submitted that since from the facts, admittedly the opposite party no 2 is the second wife of the applicant herein, therefore, she is not competent to maintain the proceedings against the applicant for the offences under sections 498A IPC. So far as the allegations of demand of dowry and torture is concerned i.e from the facts as alleged there was no demand of dowry or harassment up to four years of marriage and subsequent thereto the allegations have been made with regard to demand of dowry.
Since the marriage of opposite party no 2 with the applicant no 1 was admittedly a nullity, therefore, neither the offence under section 498A IPC nor the offence u/s 3/4 Dowry Prohibition Act would be attracted in the case.
Even if the demand has been made, the demand would not be said to have been made in connection with the marriage as the marriage itself is a nullity, therefore, counsel for the applicant seeks quashing of the entire proceedings relying upon the judgment of coordinate Bench of the Court by order dated 28.03.2024.
Per contra counsel for the opposite party no 2 submitted that in her statement under section 200 Cr.P.C the opposite party no 2 has categorically stated that the applicant no 1 had misrepresented her and on such misrepresentation she has solemnized the marriage with applicant no 1 and now her life has been spoiled by the applicant no 1 and as per the allegations as made in the complaint she has been beaten up by all the applicants, therefore, the proceedings against the applicants so far as the other offences under sections 323, 504, 506 IPC are maintainable against the applicants and cannot be quashed.
The Court observed that,
Having heard the rival submissions as made by counsel for the parties, the Court has carefully gone through from the record of the case, from the facts as have been stated herein above it is crystal clear that it was the second marriage of opposite party no 2 and there was no dispute between the applicant no 1 and opposite party no 2 till four years of such marriage and the opposite party no 2 was fully aware about her second marriage which is apparent from her own statement recorded u/s 200 Cr.P.C that despite knowing the fact that it is her second marriage she continued to live without raising any objection from such marriage.
In view thereof since the marriage of applicant no 1 and the opposite party no 2 was a nullity the provisions of Section 498A IPC would not be attracted, the aforesaid view is fully supported from the law laid down by the Apex Court in Shivcharan Lal Verma v State of M.P (2007) 15 SCC 369.
From the plain reading of the aforesaid provision the dowry means any property or valuable security given or “agreed to be given” in connection with the marriage of the parties.
“However, in the entire complaint the allegations of demand of dowry which have been made that have neither given nor agreed to have been given, therefore, the considered opinion of the Court the provision of section 3/4 Dowry Prohibition Act would also not attract in the case. So far as the allegations of harassment and torture are there with regard to the same it would be relevant that there is no specific allegation, and only general and vague allegations have been made by opposite party no 2 without there being any specific issue, who actually and when had assaulted the opposite party no 2, therefore, in the considered opinion of the Court offence u/s 323, 504, 506 IPC are also not attracted in the case,” the Court further observed.
In view thereof the Court allowed the application and the entire proceeding of the case are hereby quashed.