Dr. Preceline George and A.T. George v. State of Kerala and Bency

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE SUNIL THOMAS** **WEDNESDAY, THE 13TH DAY OF DECEMBER 2017/22ND AGRAHAYANA, 1939** **Crl.MC.No. 5381 of 2016 () ---------------------------** **AGAINST THE ORDER/JUDGMENT IN CC 1583/2015 of JMFC, KAKKANAD (TEMPORARY)CRIME NO. 639/2010 OF THRIKKAKARA POLICE STATION , ERNAKULAM** **PETITIONER(S)/ACCUSED 1 AND 2:** **-----------------------------** **1. DR.PRECELINE GEORGE AGED 36,S/O. A.T GEORGE, RESIDING AT 36/3137, ARAKKAL HOUSE, KATHRIKKADAVU, KALOOR KADAVANTHRA ROAD, KALOOR P.O, COCHIN 682 017** **2. A.T GEORGE, AGED 68,S/O. THOMMI, RESIDING AT/3137,ARAKKAL HOUSE, KATHRIKKADAVU, KALOOR KADAVANTHRA ROAD, KALOOR P.O, COCHIN 682 017** **BY ADV. SRI.SANTHAN V.NAIR** **RESPONDENT(S)/STATE/DEFACTO COMPLAINANT: ----------------------------------------** **1. STATE OF KERALA, REPRESENTED BY THE ASSISTANT POLICE COMMISSIONER, NARCOTIC CELL, KOCHI CITY, ERNAKULAM DISTRICT RERPESENTED BY THE STATE PUBLIC PROSECUTOR, HIGH COURT OF KERALA** **2. BENCY,** **AGED 32,D/O. LONAPPAN (LATE) CC-60/2391,NEYSSERI HOUSE, VADHYAAR RAD, ELAMKULAM VILLAGE, KALOOR P.O, ERNAKULAM 682 017** **R2 BY ADV. SMT.K.V.BHADRA KUMARI R BY PUBLIC PROSECUTOR KK.PUSHPALATHA** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 0812-2017, THE COURT ON 13/12/2017 PASSED THE FOLLOWING:** ## **Crl.MC.No. 5381 of 2016 ()** **---------------------------** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS** **-----------------------** **ANNEXURE A CERTIFIED COPY OF THE FIR IN CRIME NO 639/2010 OF THRIKKAKKAR APOLICE STATION, ERNAKULAM, ALONG WITH THE COPY OF THE COMPLAINT OF THE 2ND RESPONDENT** **ANNEXURE B CERTIFIED COPY OF THE FINAL REPORT FILED IN CRIME NO 639/2010 FILED BEFORE THE JFMC, ALUVA DATED 15-10-2011** **ANNEXURE C TRUE COPY OF THE JUDGMENT PASSED BY THE FAMILY COURT, ERNAKULAM IN OP NO 1561/2009 DATED 31-07-2012** **ANNEXURE D TRUE COPY OF THE JUDGMENT OF THIS HON'BLE CURT IN MAT. APPEAL NO 29/2013 DATED 4-7-2013** **ANNEXURE E TRUE COPY OF THE ORDER DATED 19-06-2010 IN MC NO 62/2009 ON THE FILES OF JFMC-1, ERNAKULAM** **ANNEXURE F TRUE COPY OF THE FIR IN CRIME NO 327/2010 DATED 21-42010 OF MANNARKAD POLICE STATION, PALAKKAD** **ANNEXURE G TRUE COPY OF THE SUMMONS ISSUED TO THE 1ST AND 2ND PETITIONERS FROM THE LEARNED JFMC,KAKKANAD IN CC NO 1583/2015** **RESPONDENT(S)' EXHIBITS** **-----------------------** **NIL** **/TRUE COPY/ PS TO JUDGE.** ## **SUNIL THOMAS, J.** - - - - - - - - - - - - - - - - - - ## **Crl.M.C.No. 5381 of 2016** - - - - - - - - - - - - - - - - - - Dated this the 13[th] day of December, 2017 ## **O R D E R** The son and father stand arrayed as accused in Crime No.693/2010 of Thrikkakkara Police station for offences punishable under sections 498A, 406 and 34 IPC now pending as CC No.1583/2010 before the JFMC, Kakkanad. 2. The first petitioner had married the second respondent on 7/6/2009. Matrimonial relationship got strained leading to several matrimonial proceedings. In O.P.No.1561/2009 filed by the first petitioner herein, the marriage between the parties was declared as null and void on a finding that the consent of the petitioner was obtained by suppression of material facts. An appeal filed as Mat.Appeal No.29/2013 was dismissed. 3. The petitioners challenge the prosecution, essentially on three grounds. Firstly, it was contended that in the light of the declaration of marriage as null and void, which is effective from the date of marriage, an offence under section 498A is not legally Crl.M.C.5381/2016 2 sustainable. Secondly, the amount and the gold allegedly misappropriated with interest has already been repaid, pursuant to the direction of the Family Court and hence the offence under section 406 IPC will not survive. The third contention was that the present petition was filed arraying the second petitioner as an accused,through on similar set of allegations in an earlier proceeding under the D.V.Act, he was not added as a party. 4. To substantiate the contention of the petitioners that in the light of the declaration of the marriage as null and void, the prosecution under section 498A is not sustainable, the petitioner relied on a three Judges Bench decision of the Supreme Court in S **hivcharan Lal Verma and Another v. State of Madhya Pradesh (2007) 18 SCC 369)** and the decision of this Court in **Suprabha v. State of Kerala ( 2013 (3) KLT 514)** . To counter this contention, the learned counsel for the second respondent relied on the two Judges Bench decision of the Supreme Court in **Subbharao v. State of A.P. (2009 (2) KLT 531 (SC)** and the Single Bench decision of this Court in **Aravindan v . State of Kerala (2005 (3) KLT 157)** 5. In Shivcharan's case (supra), the Hon'ble Supreme Court held that in the absence of a legal marriage between the victim and the accused, an offence under section 498A was not sustainable. It was held that, there was considerable force in the contention of the learned counsel for the accused that as the Crl.M.C.5381/2016 3 alleged marriage of the victim with accused was null and void, being one solemnised during the subsistence of a valid marriage with another woman, a conviction under section 498A was not sustainable. The conviction under section 498A was accordingly set aside. However, in Subbharao's case (cited supra) without noticing the 3 judges Bench decision, a Bench of two judges held that even if there is no valid marriage, there can be demand for dowry and such acts are not excluded from the purview of section 304 B or 498A IPC. It was held that, complainant need not be the legally wedded wife of the accused. 6. However, the learned Single Judge of this Court in Aravindan's case (supra), after referring to the decision in Shivcharan's case, rejected the contention of the accused that there was no legal marriage between the accused and deceased and also that they were living together on the basis of a contract only, and sustained the conviction under Section 498A. The reasoning was that in the case of section 498A and section 304B IPC, if the approach is liberal, it would create unbearable miseries to the members of the society. However, in Suprabha's case, another Single Bench followed Shivcharan's case, holding it as laying down binding precedent. 7. Evidently, the binding law is laid down in Shivcharan's case as held by this Court in Suprabha's case. Applying the binding precedent, it can be held that when the marriage is declared as null Crl.M.C.5381/2016 4 and void, it will relate back to the date of marriage itself and there is no legally existing marriage. Consequently, offence under section 498A cannot survive. 8. Regarding the gold ornaments and money allegedly given at the time of marriage, the stand of the accused as evident from Para 20 of Annexure C, was that they have not received the amount. Rejecting that contention, O.P.No.1698/2009 filed by the second respondent herein was allowed ordering return of Rs.15 Lakhs. The appeal filed by the petitioner herein was dismissed by Annexure-D judgment. It appears that, amount was repaid thereafter. Hence, the question whether offence under section 406 was in fact stood committed anterior to return of money is a matter to be considered by the court below. 9. Having considered the above, it is to be held that offence under section 498A IPC is not legally sustainable and that charge in Annexure B is liable to be quashed. However, this will not preclude the trial court from considering the question whether any other offence is made out from the materials gathered from the investigating agency. Further, the charge under section 406 IPC is not being interfered with, for the reasons stated above. However, this will not preclude the petitioners from raising all the above contentions before the court below. In the result, Crl.M.C.is allowed in part. The charge under section 498A stands quashed. The court below can proceed with Crl.M.C.5381/2016 5 the prosecution of offence/offences made out from the materials on record. Sd/- **SUNIL THOMAS Judge** dpk /true copy/ PS to Judge. Crl.M.C.5381/2016 6 **SUNIL THOMAS Judge** dpk