3 Dec 2022 11:23 AM GMT
The Orissa High Court has held that charge under Section 498-A of the Indian Penal Code cannot be quashed in exercise of jurisdiction under Section 482 CrPC against a husband merely because Family Court while deciding an application for maintenance under Section 125 CrPC has given a finding that she is not his wife. While refusing to quash an order taking cognizance under Section...
The Orissa High Court has held that charge under Section 498-A of the Indian Penal Code cannot be quashed in exercise of jurisdiction under Section 482 CrPC against a husband merely because Family Court while deciding an application for maintenance under Section 125 CrPC has given a finding that she is not his wife.
While refusing to quash an order taking cognizance under Section 498-A against the petitioner, Justice Gourishankar Satapathy said:
"…it would not be proper for a Court to undertake hair splitting scrutiny of materials on record in a proceeding under section 482 of Cr.P.C. to conclude that the proceeding under section 498-A of IPC is not maintainable for want of valid marriage which would not only encourage harassment of women but also demoralizes them."
An FIR was registered against the accused-petitioner for commission of offences punishable under sections 498(A)/323/506/34 IPC r/w 4 of Dowry Prevention Act. Subsequently, a charge-sheet was also filed against him. After perusing the materials and documents produced by the investigating officer and finding prima facie case, the Magistrate Court, by the impugned order, took cognizance and issued process. Being aggrieved by the order, the petitioner approached the High Court.
Contentions of the Petitioner
Anirudha Das, counsel for the petitioner submitted that the Family Court, while deciding an application under Section 125 CrPC, has come to a finding that the woman is not the wife of the petitioner. Thus, the counsel argued that in absence of a valid marriage, she cannot maintain a criminal proceeding for offence under Section 498-A of IPC.
He further submitted that to proceed against a person under Section 498-A, IPC, there must be a legal relationship of husband and wife. However, that not being so in this case, the criminal proceeding against the petitioner is bad in the eyes of law. To support his contentions, he placed reliance on the decisions in Reema Aggrawal v. Anupam & Anr. and Unnikrishnan @ Chandu v. State of Kerala, (2017) SCC OnLine Ker 12064.
Contentions of the Respondent
Sailaza Nandan Das, counsel for the State relied upon the decision in A. Subash Babu v. State of Andhra Pradesh & Anr., to submit that the law declared in Reema Aggrawal is binding on all Courts and the petitioner being the husband of the woman cannot take the plea that the marriage was invalid.
He further submitted that husband contracting second marriage during the subsistence of earlier marriage can be charged for offence under section 498-A of IPC and merely because a judgment is rendered by the Family Court in proceeding under section 125 of CrPC, the Court by itself cannot declare the status of the woman as 'concubine' of the petitioner.
After examining the rival contentions, the Court held that the Family Court could not have given a finding on the validity of marriage while deciding an application for maintenance under Section 125 CrPC, as the same can only be done through a civil proceeding after assessing evidence and pleadings on record.
"It is true that learned Judge, Family Court has concluded by his judgment in Cr.P. No. 64 of 2016 which is admittedly a proceeding U/S 125 of Cr.P.C. that the O.P. No.2 (Petitioner therein) cannot be treated as the wife of Petitioner (O.P. therein) but such conclusion can be arrived at in a civil proceeding to declare the status of a woman as such, if the person claiming for such declaration makes out a case for the relief on assessment of evidence and pleadings on record, but the learned Judge, Family Court herein at best could have concluded while refusing to grant maintenance by his judgment that the Petitioner could not establish her relationship with O.P. as husband and wife."
The Court further observed that the plea of 'no marriage' was advanced by the petitioner in the course of hearing of the application before the High Court under Section 482, Cr.P.C. However, it added that the court is not sitting over a case in exercise of original jurisdiction to decide the status of the parties by way of declaration which can only be done by a Civil Court. It further said:
"It is also extremely unfair and harsh to a woman who claims herself to be wife of a person by entering into a marital relationship and later on become a victim of desertion by the said person taking plea of absence of a valid marriage. The obvious objective of enacting offence under section 498-A of IPC is to secure the prevention of harassment to a woman from cruelty meted out to her by husband or his relatives."
Consequently, after taking into consideration the uncontroverted allegation mentioned in the FIR and statement of witnesses together with other documents collected in the course of investigation, the Court concluded that there are prima facie materials for proceeding against the petitioner for offences alleged against him.
"The learned Court of S.D.J.M., Nabarangpur has not committed any illegality in taking cognizance of offences by the impugned order which cannot be interfered by this Court in exercise of power of inherent jurisdiction as the same has been passed on proper legal scrutiny of materials on record," the court said, while dismissing the plea.
Case Title: Jaga Sarabu v. State of Orissa & Anr.
Case No.: CRLMC No. 1327 of 2015
Judgment Dated: 29th November 2022
Coram: G. Satapathy, J.
Counsel for the Petitioner: Mr. Anirudha Das, Advocate
Counsel for the Respondent: Mr. Sailaza Nandan Das, Additional Standing Counsel
Citation: 2022 LiveLaw (Ori) 157
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