Kerala High Court IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl MC No. 8601 of 2002
1. M. ABDUL SATHAR, S/O. ERAMULLAN, … Petitioner
Vs
1. ANEESA, D/O. ASSAINAR, … Respondent
2. SUB INSPECTOR OF POLICE, HOSDURG
3. STATE OF KERALA REPRESENTED BY
For Petitioner :SRI.IMTHIYAZ AHAMED
For Respondent :PUBLIC PROSECUTOR
The Honble MRS. Justice K.HEMA
.HE 1
Can a former/divorcee husband be held liable for
offence under section 498A of Indian Penal Code (IPC, for
short)? Is existence of marriage between accused and the
victim, a requirement to constitute offence under section
498A IPC? Can the court take cognizance of offence under
section 498A IPC on the basis of a complaint filed by a
divorced woman? These are precisely, the questions to be
answered in this case.
2. A private complaint was filed by a divorced
wife against her former husband and his relatives before
a Magistrate of First Class. It was alleged in the
complaint that petitioner subjected the complainant/first
respondent to cruelty during subsistence of their
marriage and also after the divorce. Magistrate
forwarded the complaint to police under section 156(3) of
code of criminal procedure for investigation and a charge
sheet was filed against the accused under section 498A
and 34 of IPC. Petitioner is the first accused in the
case. He seeks to quash the complaint and the
proceedings initiated against him.
3. Learned counsel appearing for petitioner
contended that petitioner cannot be prosecuted for
offence under section 498A IPC since admittedly, he is
not `the husband but only the `former husband of the
complainant. According to him, offence under section
498A IPC will lie only against `the husband and `the
relatives of the husband. But, on account of the
divorce petitioner ceased to be the `husband and no
marital relationship exists between complainant and
petitioner. Section 498A IPC deals with a matrimonial
offence and existence of a matrimonial relationship
between the accused and the victim is a pre-requisite to
constitute offence under the said section. But,
petitioner not `being the husband of the complainant, he
cannot be proceeded against under section 498A IPC.
These in short, are the arguments.
4. The above argument appears to be built upon
the language of section 498A IPC. A plain reading of
section 498A IPC shows that the expressions used therein
referring to the accused are, `the husband and `the
relatives of the husband. But petitioner admittedly, is
not `the husband. He can be treated only as `former
husband or `divorcee husband of the victim. So, the
question is, can a former/divorcee husband be proceeded
against for offence under section 498A of Indian Penal
Code? In existence of marriage between the accused and
the victim, a requirement to constitute offence under
section 498A IPC? Can the court take cognizance of
offence under section 498A IPC on the basis of a
complaint filed by a divorced woman?
5. To seek answers to the above three questions,
a reading of section 498A IPC is absolutely necessary.
The said section is therefore extracted as hereunder:
.SP 1
S.498-A. Husband or relative of husband of a@@
i
woman subjecting her to cruelty.– Whoever, being
the husband or the relative of the husband of a
woman, subjects such woman to cruelty shall be
punished with imprisonment for a term which may
extend to three years and shall also be liable to
fine.
Explanation.- For the purposes of this section,@@
i
cruelty means-
(a) any wilful conduct which is of such a@@
i
nature as is likely to drive the woman to
commit suicide or to cause grave injury
or danger to life, limb or health
(whether mental or physical) of the
woman; or
(b) harassment of the woman where such@@
i
harassment is with a view to coercing her
or any person related to her to meet any
unlawful demand for any property or
valuable security or is on account of
failure by her or any person related to
her to meet such demand.
.SP 2
6. From a reading of section 498A IPC, it is
clear that if a person `being the husband or `the
relative of the husband of a woman subjects her to
cruelty, he can be held guilty of offence under the said
section. The relevant expressions used in the section
referring to the accused are, `being the husband and
`the relative of the husband. `Being the husband would
ordinarily mean, `in his capacity as the husband, or `on
account of his being the husband or `on his being the
husband. That means, if a person subjects a woman to
cruelty on his being her husband ie., in his status as
the husband, offence under section 498A will be
attracted.
7. From the above discussion it is clear that
what is relevant to establish offence under section 498A
IPC is the marital status of the accused at the time of@@
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commission of offence. The expression, `being the@@
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husband used in the section relates to the marital
status of the accused at the time of commission of the
offence and not such status at the time of filing of
complaint. Emphasis is seen given in section 498A IPC to
the marital status of the accused at the time of
commission of offence and not to what it was at the time
of filing the complaint. In such circumstances, offence
under section 498A IPC will lie against a person
irrespective of whether he was the husband or former
husband of a woman at the time of filing of complaint.
If a former husband had committed the offence in his
capacity as the husband during subsistence of his
marriage with the victim, he can be proceeded against for
offence under section 498A IPC.
8. A reading of section 498A IPC further reveals
that the expression used in section 498A IPC to denote
`the person aggrieved by the offence is significantly,
`woman and not `wife. This in a way, gives an
indication that there is no bar for a woman — whether
she be the wife or the divorced wife — to proceed
against the accused/husband for offence under section
498A IPC if she is aggrieved by commission of such
offence. But in such case, it has to be established that
the offence was committed by the accused while marriage
between the accused and victim was in existence. It is
not necessary that the victim should continue to be `the
wife of the accused at the time of filing of complaint
also.
9. The above position is further clear from
section 198A of the Code of Criminal Procedure (the code,
for short) also. The said section reads as follows:
.SP 1
S.198-A. Prosecution of offences under Section@@
i
498-A of the Indian Penal Code.- No court shall
take cognizance of an offence punishable under
Section 498-A of the Indian Penal Code (45 of
1860) except upon a police report of facts which
constitute such offence or upon a complaint made
by the person aggrieved by the offence or by her
father, mother, brother, sister or by her
fathers or mothers brother or sister or, with
the leave of the Court, by any other person
related to her by blood, marriage or adoption.
.SP 2
10. The expression used in Section 198A of the
Code, referring to the victim is the person aggrieved by
the offence and not wife. Thus, in section 198A of the
code also, just as in section 498A IPC, the expression
`wife is strikingly kept away by the legislature. The
use of the word `wife appears to be deliberately avoided
in this section also. Though `the person aggrieved by
the offence under section 498A IPC is normally the
`wife, the expression used in section 198A of the code
referring to such victim is not `wife but it is, `the
person aggrieved by the offence. This also suggests
that there is no bar for the divorced wife from
proceeding against the accused for the offence committed
by him during subsistence of marriage between them.
11. The inclusion of the word `woman, the
exclusion of the word `wife and use of the expressions
`being the husband in section 498A IPC and `the person
aggrieved by the offence in section 198A of the code do
not appear to be merely accidental. There must be
certain clear-cut, unmistakable intention behind the
same. Legislature must have intended that even if a
victim of offence under section 498A IPC ceases to be the
wife after commission of offence, such woman shall not be
prevented from proceeding against the accused for the
offence which he had committed during the subsistence of
marriage. Legislature must have also planned that an
accused should not be allowed to escape from the
liability under section 498A IPC, by divorcing his wife
after committing the offence during a period while his
marriage with the victim was in existence. Both these
intentions are made workable by the skill of
draftsmanship in framing section 498A IPC as well as
section 198A of the code.
12. Otherwise, it will be easy for an offender
to defeat a woman and also the very object of the
legislation by pronouncing `thalaq immediately after
commission of offence under section 498A IPC and get
himself absolved from criminal liability. This
possibility must have been there in the mind of the
framers of the section while introducing the provision
and that explains the cautious usage of the relevant
expressions in section 498A IPC and section 198A of the
code. Thus, a woman, whether she be the wife or divorced
wife can proceed against the accused/husband, if she is
aggrieved by the offence committed by him during
subsistence of their marriage under section 498A IPC.
The court can take cognizance of such offence falling
under Section 498A IPC on a complaint filed by a divorced
wife.
13. Another important question also arises in
this case. Can a former husband be held liable under
section 498A IPC for alleged act of `cruelty committed
by him on his divorced wife, after the divorce? As per
the allegations in the complaint, petitioner who is the
former/divorcee husband of the divorced woman continued
to inflict `cruelty on her even after divorce. But,
going by the language of section 498 IPC, he cannot be
held guilty of offence under section 498A IPC because, as
per the said Section, the act committed by a person will
be an offence only if he has done it in his marital
status as `the husband. After divorce, he ceases to be
`the husband and hence such acts committed by him after
divorce will not constitute offence under section 498A
IPC. If such acts make out any other offence, he can be
proceeded against for such other offence or offences.
14. I shall now sum up: If a former/divorcee
husband had subjected a divorced wife to cruelty in his
status as her husband during subsistence of their
marriage, he will be liable for offence under section
498A of IPC. But, if the alleged act of cruelty is
committed by a former husband on the divorced wife after
divorce, no offence under section 498A IPC will lie
against him. He can however be proceeded against for
such act, if it constitutes any other offence.
15. I would also hold that to constitute offence
under section 498A IPC, existence of marriage between
accused/husband and victim at the time of commission of
offence is what is relevant and not that at the time of
filing of complaint. There is also no bar under section
498A IPC for a divorced wife to file a complaint against
her former husband for the offence committed by him
during subsistence of their marriage under section 498A
IPC. Section 198A of the Code enables a divorced wife
also to file such complaint and the court can take
cognizance of offence under section 498A IPC if the
offence was committed at a time when the marriage between
accused/husband and victim was subsisting.
16. In the above circumstances, this court
cannot quash either the complaint or the proceedings
initiated against petitioner, since the allegations in
the records prima facie constitute offence under section
498A IPC. But, learned counsel appearing for the
petitioner submitted that both petitioner and complainant
got remarried after the divorce and they are well-settled
in life and hence a lenient view may be taken to quash
proceedings. I am not inclined to extend any leniency in
this case. Legally, leniency is no ground to invoke
section 482 of the code to quash proceedings. On facts,
records reveal that petitioner continued to harass
complainant even after the divorce.
17. This pattern of a crime or a post-divorce
syndrome was evidently not within the legislative vision
at the time of moulding section 498A IPC. Concern of the
framers did not foresee perhaps, hazard of a crime
breaking its way into a womans next shelter also. But,
no wrong-doer deserves to escape for want of law. No
offender shall be set free on misplaced sympathy or undue
leniency. Accused is only one side of the coin. Court
has to tilt the coin and see the other side too. While
rendering justice, both sides shall be viewed. Criminal
justice system cannot afford to forget the victim or
ignore her. A victim must be assured that the system
cares and feels for her. If any kind of forbidden
compassion is extended to an offender, it can give a
wrong signal to her.
18. The law is not dead, it has only slept. It
can wake up at any hour of the day and pave its way to
another suitable legislation in this country to check the
harm. Judicial hopes have wings; those can soar higher
and higher, longing to reach the pleasant skyline of
justice and fairness. Butler, J. of the U.S. Supreme
Court in Nice v. Minnesota (283 U.S. 697) stated thus:
Society could not long endure under such threats. If the courts did not protect the injured, the injured parties would then resort to private vengeance. Lets this not happen.
This petition is dismissed.