Complaint Under Section 498A Is Maintainable Even If Marriage Is Void: Jammu & Kashmir High Court

Relying on the rulings of the Apex Court, the bench of Justice Sanjay Dhar further held that when a person enters into a marital arrangement with a woman, he is covered by the definition of 'husband' as contained in Section 498-A RPC "irrespective of the legitimacy of the marriage".

The matter before the Court

The petitioners (Parents, Sister & Wife of Accused Kuldeep kumar) before the Court challenged the FIR for offence under Section 498-A RPC, which was filed by the respondent-complainant woman (the lady who claimed that she is the wife of Kuldeep kumar).

Petitioners No.1 and 2 happen to be the parents of accused Kuldeep Kumar and petitioner No.3 happens to be his sister.

Petitioner No.4, who claimed to be the legally wedded wife of accused Kuldeep Kumar, was not named as an accused in the subject FIR, and she challenged the subject FIR on behalf of her husband.

The respondent 2-complainant woman alleged in her complaint that she had entered into wedlock with one Kuldeep Kumar and that her husband and his relatives (petitioners in the instant matter), used to harass and subject her to cruelty and that she was beaten up and thrown out of her matrimonial home.

It was also alleged that her husband (accused Kuldeep Kumar) is working in the Army, but she is not being paid any maintenance and the allegations regarding demands of dowry items was also made.

Based on the aforesaid complaint, impugned FIR came to be registered and the investigation of the case was set into motion.

FIR challenged before the HC

The petitioners thus challenged the impugned FIR primarily on the ground that the Kuldeep Kumar is a married person and there was no scope for him to get married second time during the lifetime of his first wife (the petitioner No.4).

It was contended that since the complainant-woman was not the legally wedded wife of Kuldeep Kumar, as such, offence under Section 498-A RPC was not made out against the petitioners.

According to the learned counsel for the Petitioners, as per Hindu law, a person is prohibited from solemnizing second marriage during the life time of his first wife and in case he does so, the second marriage would be void ab initio.

Court's Order

Relying on Apex Court's Judgments in the cases of Reema Aggarwal v. Anupam and others, (2004) 3 SCC 199 & A. Subash Babu v. State of A.P and another, (2011) 7 SCC 616, the Bench held,

"Even if respondent No.2 (Complainant) is not the legally wedded wife of accused Kuldeep Kumar, still then, petitioner Nos. 1 to 3, who happen to be the relatives of the accused Kuldeep Kumar as also accused Kuldeep Kumar can be prosecuted for an offence under Section 498-A RPC on the basis of allegations made by respondent No.2 in the subject FIR."

Further, the Court found that the allegations made in the subject FIR prima facie constituted an offence under Section 498-A RPC against the accused Kuldeep Kumar and petitioner Nos. 1 to 3.

In this backdrop, the Court remarked,

"As such, the investigation, which is still at its infancy, cannot be throttled by quashing the subject FIR."

For the foregoing reasons, the Court did not find any good ground to interfere in the investigation of the impugned FIR.

Case title - Karnail Chand and others v. State of J&K and another [CRMC 560/2018 CrlM No. 1496/2020]

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