* THE HON’BLE SRI JUSTICE U. DURGA PRASAD RAO
+ Criminal Petition No.10782 of 2014
%28.11.2014
Between:
Nalla Thirupathi Reddy and others. ....
Petitioners AND The State of Telangana, Rep. by its Public Prosecutor, High Court of Judicature at Hyderabad For the States of Telangana and A.P and another. ….
Respondents ! Counsel for Petitioners : Sri Y. Hema Chander ^ Counsel for Respondent No.1 : Public Prosecutor for State < Gist:
> Head Note:
? Cases referred:
1) (2007) 15 SCC 369
2) (2011) 1 OLR (SC) 328
3) (2010) 3 Crimes (HC) 497
4) (2011) 7 SCC 616 = (2011) 3 ALT (Cri) 242 HON’BLE SRI JUSTICE U. DURGA PRASAD RAO
Criminal Petition No.10782 of 2014
ORDER:
The point for determination in this quash petition is whether a second wife can lodge a police report under Section 498-A I.P.C.
2 ) On factual side, the Nalla Rama presented a report to S.H.O, Metpalli P.S with the allegations that Nalla Thirupathi Reddy/ first petitioner herein is her husband and petitioners 2 and 3 herein are his parents and that initially first petitioner married one Latha about 10 years back and begot two children and the said Latha suffered injuries in a fire accident and subsequently about 4 years back the first petitioner married the complainant with the consent of Latha and the parents of complainant presented him Rs.2,00,000/- as dowry and some land and Rs.1,00,000/- towards other paraphernalia and out of their wedlock they begot a daughter by name Vysali and thereafter all the petitioners started harassing her for additional dowry of Rs.10,00,000/- and they subjected her to physical and mental cruelty and ultimately necked her out and the disputes raised by her parents through elders did not yield any result and ultimately on 03.11.2012 the first petitioner went to her paternal home and bet her. The police registered a case in Crime No.221/2012 under Section 498-A and 506 of I.P.C and the case is under investigation.
3 ) While-so, the petitioners/A.1 to A.3 filed the instant petition seeking to quash the FIR in Crime No.221/2012 on the grounds of denying the complaint allegations on one hand and questioning the locus standi of the complainant, being the alleged second wife to file complaint under Section 498-A I.P.C.
4) Heard learned counsel for petitioners. Though notice was served on the second respondent/complainant, there is no representation on her behalf.
5) While denying the complaint averments, learned counsel vehemently argued that even assuming that the allegations are true, still the right to file complaint under Section 498-A I.P.C vests with a legally wedded wife alone but not a second wife or a concubine. He would submit that the complaint itself shows she is a second wife and the Latha, who is the legally wedded wife of the first petitioner is very much alive and in these circumstances, continuation of proceedings would amount nothing but abuse of process of law. Learned counsel further submitted that apart from lodging the present complaint, the complainant also filed M.C.No.6/2013 and D.V.C.No.2/2013 against the petitioners making the same allegations. Besides, she also filed O.P.No.1/2014 before the Senior Civil Judge’s Court, Jagithyal seeking annulment of her marriage with first petitioner. In all these petitions she admitted to be a second wife having married the first petitioner knowing fully well that he is having a legally wedded first wife alive. To buttress his argument that a second wife cannot maintain a complaint under Section 498-A I.P.C, he relied upon the following decisions:
1) Shivacharan Lal Verma vs. State of Madhya
[1]
Pradesh
[2]
2) Sunita Jha vs. State of Jharkhand
[3]
3) A. Subash Babu vs. State of Andhra Pradesh
6) POINT: A perusal of the complaint averments, no doubt reveal that the first petitioner already married one Latha about 10 years back and begot children and subsequently she met with a fire accident and so the complainant married the first petitioner with the consent of said Latha. So the complainant is the second wife of the first petitioner. Then she made allegations about the physical and mental harassment said to be meted out by all the petitioners demanding her to bring additional dowry. Be that it may, the petitioners are challenging her locus standi on the ground that she is not the legally wedded wife but only a second wife even assuming her allegations to be true.
a) In Shivacharan Lal Verma’s case (1 supra), the facts are that appellants 1 and 2 are husband and wife and first appellant married the deceased second time. Both the appellants were convicted for the offences under Sections 306 and 498-A I.P.C on the ground that they harassed the deceased who was living with them and abetted her in committing suicide. Hon’ble Apex Court while maintaining the conviction under Section 306 I.P.C set aside the conviction under Section 498-A I.P.C on the observation that the alleged marriage with Mohini (deceased) during the subsistence of valid marriage with Kalindi (A.2) is null and void.
b) In Sunita Jha’s case (2 supra), the point for consideration was who can be termed as relative of the husband for the purpose of Section 498-A I.P.C. This decision has no relevance to the present case on hand.
c) In A. Subash Babu’s case (3 supra), a learned single Judge of this High Court relying upon Shivacharan Lal Verma’s case (1 supra) held that a second wife cannot maintain a complaint under Section 498-A I.P.C. It should be noted here that against the judgment in A. Subash Babu’s case (3 supra) Criminal Appeal was carried out to Hon’ble
[4]
Apex Court in A.Subash Babu vs. State of A.P. , wherein Hon’ble Apex Court while deprecating the learned Single Judge’s order quashing the proceedings in respect of the offence under Section 498-A I.P.C has observed thus:
“Para 16: This Court finds that the High Court has quashed the proceedings pending before the learned Magistrate under Section 498A of IPC on the spacious ground that the marriage of the Appellant with the Respondent No. 2 is void and as Respondent No. 2 is not the wife, she was not entitled to lodge first information report with the police for commission of offence under Section 498A IPC and on the basis of police report, cognizance of the said offence against the Appellant could not have been taken by the learned Magistrate. Such reasoning is quite contrary to the law declared by this Court in Reema Aggarwal v. Anupam and others ((2004) 3 SCC 199). After examining the scope of Section 498A of the Indian Penal Code and holding that a person who enters into marital arrangement cannot be allowed to take shelter behind the smoke screen of contention that since there was no valid marriage the question of dowry does not arise, this Court speaking through Hon'ble Mr. Justice Arijit Pasayat, has held as under:
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 498A. 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. The first exception to Section 494 has also some relevance. According to it, the offence of bigamy will not apply to "any person whose marriage with such husband or wife has been declared void by a court of competent jurisdiction". It would be appropriate to construe the expression "husband" to cover a person who enters into marital relationship and under the color of such proclaimed or feigned status of husband subjects the woman concerned to cruelty or coerces her in any manner or for any of the purposes enumerated in the relevant provisions- Sections 304B/498A, whatever be the legitimacy of the marriage itself for the limited purpose of Sections 498A and 304B IPC. Such an interpretation, known and recognized as purposive construction has to come into play in a case of this nature. The absence of a definition of "husband" to specifically include such persons who contract marriages ostensibly and cohabit with such woman, in the purported exercise of their role and status as "husband" is no ground to exclude them from the purview of Section 304B or 498A IPC, viewed in the context of the very object and aim of the legislations introducing those provisions.”
With the above observations, Hon’ble Apex Court set aside the order of learned Single Judge insofar as his quashing the proceedings under Section 498-A I.P.C is concerned and held as follows:
Para 17: In view of firm and clear law laid down on the subject, this Court is of the confirmed view that the High Court was not justified at all in quashing the proceedings initiated against the Appellant under Section 498A of the Code on the ground that the Respondent No. 2 was not wife within the meaning of Section 498A of the IPC and was not entitled to maintain complaint under the said provision.”
It is true that there is a dichotomy of opinion between Shivacharan Lal Verma’s case (1 supra) and A. Subash Babu’s case (4 supra). However, I tend to follow the decision of Hon’ble Apex Court in A. Subash Babu’s case (4 supra) as it being the latest judgment on the subject in issue i.e, whether complaint initiated by a second wife for the offence under Section 498-A I.P.C can be quashed or not. In the light of above decision of Hon’ble Apex Court in A.Subash Babu’s case (4 supra), the petitioners/A.1 to A.3 cannot seek for quashing of the proceedings. Sofaras the genuinity of the complaint allegations touching the harassment for additional dowry is concerned, at this peripheral stage of the matter which is under investigation, that aspect cannot be decided and therefore, police shall be allowed to investigate the matter.
7) In the result, this Criminal Petition is dismissed with a direction to the police to continue the investigation to its logical end.
As a sequel, miscellaneous applications pending, if any, shall stand closed.
U. DURGA PRASAD RAO, J Date: 28.11.2014
Note: L.R Copy to be marked: Yes / No scs
[1] (2007) 15 SCC 369
[2] (2011) 1 OLR (SC) 328
[3] (2010) 3 Crimes (HC) 497
[4] (2011) 7 SCC 616 = (2011) 3 ALT (Cri) 242