The Allahabad High Court recently observed that a “second wife” cannot file a complaint of cruelty under Section 498A of the Indian Penal Code, against her “husband” as these charges are not maintainable in such an instance.
Section 498A of the Indian Penal Code (IPC) provides punishment for cruelty on a married woman by husband or relatives of husband. The bench of Justice Arun Kumar Singh Deshwal said the IPC is a penal provision, not beneficial legislation where liberal interpretation is permissible; therefore, strict interpretation of the term husband is required for Section 498A.
The court pointed out that the definition of the husband is unavailable either under the IPC or the Hindu Marriage Act, 1955. But, according to 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. This means that if the first wife is alive, marriage with another woman is not valid, the court said.
It held that the relationship between a man, who is already married, and another woman cannot be of husband and wife. Therefore, proceedings under Section 498A are not maintainable in such cases, it added.
The court, however, noted that as far as an offence under sections 3/4 of the Dowry Prohibition Act is concerned, the main ingredients are giving, taking or demanding dowry by any person. It also pointed out Section 2 of the Act, which provides that 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,” the court held.
It said if a male and female are cohabiting together as husband-wife and the male partner makes any dowry demand from the female partner, then ingredients of sections 3 and 4 of the Dowry Prohibition Act can be attracted.
The observations were made by the court while dealing with an application filed under Section 482 of the Criminal Procedure Code (CrPC) to quash a case registered under sections 498A, 323, 504 and 506 of the IPC and sections 3/4 of the Dowry Prohibition Act.
The allegations against the accused persons were that they harassed the victim, who had been married to one of the accused for six years and was the mother of three children, over dowry demands. Further, they physically assaulted her.
The counsel for the accused challenged the proceedings under Section 498A of the IPC, contending that the FIR by the second wife was lodged in 2019 whereas the accused got a divorce from his first wife only in 2022. Hence, the proceedings are illegal, the counsel argued.
The government counsel argued that for the purpose of Section 498A of the IPC as well as sections 3 and 4 of the Dowry Prohibition Act, strict interpretation regarding the validity of marriage should not be made and liberal consideration should be given.
The court held that under Section 498A of the IPC, it is explicit that a woman must be subjected to cruelty by her husband or his relative. It said since the woman was not the legally wedded wife of the accused, therefore, proceedings under Section 498A of the IPC were not maintainable.
But, the court held that the proceedings under the Dowry Prohibition Act were valid and, on record, there was sufficient material to make out a case under sections 323 (voluntarily causing hurt), 504 (intentional insult with intent to provoke breach of peace) and 506 (criminal intimidation) of the IPC.
Accordingly, the court quashed the case only under Section 498A of the IPC and allowed proceedings against the accused under the rest of sections invoked.
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