SUPRABHA v. STATE OF KERALA

[CR] IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE B.KEMAL PASHA TUESDAY, THE 23RD DAY OF JULY 2013/1ST SRAVANA, 1935 Crl.MC.No. 3647 of 2009 ( ) ------------------------------------- AGAINST THE ORDER/JUDGMENT IN CC 354/2009 of JUDICIAL FIRST CLASS MAGISTRATE’S COURT, PARAVOOR, KOLLAM DISTRICT CRIME NO. 118/2005 OF PARIPPALLY POLICE STATION , KOLLAM ## PETITIONER/ACCUSED: ------------------------------- SUPRABHA, D/O.DHARAN, GULNAR HOUSE, PARIPPALLY VILLAGE, KOLLAM. BY ADVS.SRI.SIBY MATHEW SRI.PHILIP J.VETTICKATTU SRI.B.PREMNATH (E) ## RESPONDENTS/COMPLAINANT & DEFACTO COMPLAINANT: -------------------------------------------------------------------------------- ## 1. STATE OF KERALA, (S.I.OF POLICE, PARIPPALLY POLICE STATION, PARIPPALLY KOLLAM), REPRESENTED BY THE, PUBLIC PROSECUTOR, HIGH COURT OF KERALA. ## 2. REEMA SALIM, "UTHRADAM", PARIPPALLY, KOLLAM. R1 BY PUBLIC PROSECUTOR SRI. SREEJITH V.S. R2 BY ADVS. SMT.K.KUSUMAM SRI.PRIYA SHANAVAS THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 23-07-2013, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Crl.MC.No. 3647 of 2009 ( ) ## APPENDIX ## PETITIONER’S ANNEXURES : - A1 COPY OF COMPLAINT FILED BY THE 2ND RESPONDENT BEFORE THE JFCM COURT, PARAVOOR, KOLLAM AS CMP NO.7031/2004. - A2 COPY OF FINAL REPORT FILED BY THE POLICE DT.07.02.2009 BEFORE THE JFCM COURT, PARAVOOR. - A3 COPY OF ORDER DT.30.04.2003 PASSED BY THE FAMILY COURT IN O.P.NO.816/99. - A4 COPY OF STATEMENT GIVEN BY K.G.RAVI BEFORE THE POLICE. ## RESPONDENTS’ ANNEXURES: ## R2(1) MARRIAGE CERTIFICATE. R2(2), 2A, 2B, 2C MARRIAGE PHOTOS. - R2(3) COPY OF INJUNCTION ORDER IN O.S.NO.5/04 OF THE MUNSIFF’S COURT, PARAVOOR. R2(4) PLAINT IN O.S.5/04 OF THE MUNSIFF’S COURT, PARAVOOR. - R2(5) COPY OF PLAINT IN O.S.11/04 OF THE MUNSIFF’S COURT, PARAVOOR. - R2(6) COPY OF PLAINT IN O.S.593/04 OF THE MUNSIFF’S COURT, KOLLAM. - R2(7) COPY OF ORDER IN CMA 66/05 OF THE SUB COURT, KOLLAM. - R2(8) COPY OF PLAINT IN O.S.223/05, OF THE MUNSIFF’S COURT, KOLLAM. - R2(9) COPY OF COMMISSION REPORT IN OP(Q)85/05 OF THE CONSUMER REDRESSAL FORUM, KOLLAM. - R2(10) COPY OF COMMISSION REPORT IN O.S.NO.183/05 OF THE FAMILY COURT, KOLLAM. R2(11) COPY OF PLAINT IN O.S.NO.227 F 2005 OF THE SUB COURT, KOLLAM. R2(12) COPY OF PETITION IN M.C.194/04 OF THE FAMILY COURT, KOLLAM. Crl.MC.No. 3647 of 2009 ( ) R2(13) COPY OF O.P.220 OF 2004 OF THE FAMILY COURT, KOLLAM. - R2(14) COPY OF COMPLAINT IN CMP.2147/05 FILED BEFORE THE JUDICIAL FIRST CLASS MAGISTRATE’S COURT-I, PARAVOOR, BY THE PETITIONER. - R2(15) COPY OF AFFIDAVIT OF THE PETITIONER, SWORN IN MALAYALAM, FILED IN O.P.(Q)85 OF 2005. // True Copy // P.A. To Judge ## [CR] B. KEMAL PASHA, J -----------------------------------Crl.M.C.No. 3647 of 2009 ----------------------------------Dated this the 23[rd] day of July, 2013 ## O R D E R The question precisely arises for consideration is whether the existence of a valid marriage is required to invite the ingredients of an offence punishable under Section 498 A of the Indian Penal Code? 2. The petitioner, who is the accused in Crime No.118 of 2005 of the Parippally Police Station presently pending as C.C.No.354 of 2009 before the Judicial First Class Magistrate's Court, Paravoor, Kollam District, has come up with a prayer to get the proceedings against her, quashed under Section 482 of the Code of Criminal Procedure. 3. The case before court below is, as a result of a private complaint filed by CW1 as complainant, against the present petitioner as accused, alleging an offence punishable under Section 498 A of the Indian Penal Crl.M.C.No. 3647 of 2009 2 Code, which was referred to the Police under Section 156 (3) of the Code of Criminal Procedure. The Police have registered the crime, investigated the matter, and filed the final report. The defacto complainant is CW1, the husband of the defacto complainant who is the son of the petitioner is CW2, and the husband of the petitioner is CW3 in this case. 4. In the private complaint, it was alleged that CW2 had married CW1 on 28.01.2000. According to the petitioner, as on 28.01.2000, there was no marriage at all and that, on that day, CW2 had another subsisting valid marriage. The said marriage of CW2 was dissolved on 30.04.2003 only through Annexure A3 judgment passed by the Family Court, Thiruvananthapurm. The parties are Hindus. Matters being so, the alleged marriage of CW1 with CW2 on 28.01.2000, if any solemnized, was void. 5. The defacto complainant (CW1) has produced Annexure R2(1) copy of the certificate of marriage Crl.M.C.No. 3647 of 2009 3 solemnized between her and CW2, which shows that the marriage was solemnized between them through the Provisions of the Special Marriage Act, on 14.10.2003. 6. On going through the allegations levelled against the petitioner by the defacto complainant in the private complaint alleging an offence under Section 498 A IPC, it is evident that the incidents relating to those allegations were prior to 18.09.2003, as is evident from paragraph 11 of the private complaint produced by the petitioner as Annexure A1. It has been specifically averred in paragraph 11 that the petitioner has thrown out CWs 1 to 3 from her house on 18.09.2003 and thereafter CWs 1 to 3 have been residing together in a rented house. On a perusal of the complaint, it seems that even though many complaints were raised by the defacto complainant, none of such incidents, allegedly occurred after 18.09.2003, is sufficient to constitute 'cruelty' within the meaning of Section 498 A of the Indian Penal Code. Crl.M.C.No. 3647 of 2009 4 7. At the same time, there are allegations which may constitute 'cruelty' within the meaning of Section 498 A of the Indian Penal Code, in the private complaint, which had allegedly occurred prior to 18.09.2003. It has to be noted that a valid marriage was solemnized between CW1 and CW2 on 14.10.2003 only. Prior to 18.09.2003, due to the subsistence of another valid marriage, the so called marital relationship between the defacto complainant and CW2 could not create any valid marriage. 8. According to the learned counsel for the petitioner, a valid marriage is a necessary ingredient to invite an offence under Section 498 A of the Indian Penal Code. At the same time, the learned counsel for the defacto complainant has strenuously contended that any valid marriage is not required to invite the offence under Section 498 A of the Indian Penal Code, whereas a long cohabitation in the form of a marriage is sufficient. The learned counsel for the petitioner has invited my Crl.M.C.No. 3647 of 2009 5 attention to the decision of a three Judges' Bench of the Supreme Court in Shivcharan Lal Verma & Anr. v. State of M.P. (2002 (2) Crimes 177 SC =JT (2002)2 SC 641) wherein the Apex Court held that in order to attract an offence under Section 498 A of the Indian Penal Code, the subsistence of a valid marriage is required. In the case relating to the decision in Shivcharan Lal Verma's case (Supra), the marriage in question was null and void on account of the subsistence of another valid marriage. It was held as follows: “..One, whether the prosecution under S.498A can at all be attracted since the marriage with Mohini itself was null and void, the same having been performed during the lifetime of Kalindi. Second, whether the conviction under S.306 could at all be sustained in the absence of any positive material to hold that Mohini committed suicide because of any positive act on the part of either Shiv Charan or Kalindi. There may be considerable force in the argument of Mr.Khanduja, learned counsel for the appellant so far as conviction under S.498A is concerned, Crl.M.C.No. 3647 of 2009 6 inasmuch as the alleged marriage with Mohini during the subsistence of valid marriage with Kalindi is null and void. We, therefore, set aside the conviction and sentence under S.498A of the I.P.C.” The said decision has been followed in Suvetha v. Inspector of Police reported in 2009 (2) KLT 686 (SC), by the Apex Court. 9. The learned counsel for the defacto complainant has invited my attention to the decision in Subbharao v. State of A.P. reported in 2009 (2) KLT 531 (SC), wherein it was held that: “The absence of a definition of 'husband' to specifically include such persons who contract marriages ostensibly and cohabitate with such woman, in the purported exercise of his role and status as 'husband' is no ground to exclude them from the purview of S.304B or 498A. IPC.” It has to be noted that in the said decision, the earlier decision of the three Judges' Bench in Shivcharan Lal Verma's case (Supra) was not mentioned or considered. 10. Similarly, the learned counsel for the defacto Crl.M.C.No. 3647 of 2009 7 complainant as well as the learned Public Prosecutor has pointed out the decision in Aravindan v. State of Kerala reported in [2005 (3) KLT 157] rendered by a learned Single Judge of this Court, wherein it was held that: “The expression 'husband' in S.498 A covers such persons who enters into marital relationship and under the colour of such proclaimed status of husband coheres her in any manner, for any of the purposes enumerated in S.304 B or 498 A.” When there is a binding precedent by a three Judges' Bench of the Apex Court in the matter, this court is bound to follow the dictum laid down by the Apex Court in the said decision. Relying on the decision in Shivcharan Lal Verma's case (Supra), it has to be found that an offence under Section 498 A cannot be invited in this particular case for any period prior to 14.10.2003. As far as any period after 14.10.2003 concerned, there is no valid allegation in the private complaint in order to invite the ingredients of Section 498 A of the Indian Penal Code. 8 Crl.M.C.No. 3647 of 2009 11. The allegations in the Final Report also are based on the allegations contained in the private complaint for the period prior to 18.09.2003. Matters being so, the allegations in the Final Report also are not sufficient to constitute an offence under Section 498 A of the Indian Penal Code in this case. Matters being so, there is no purpose in proceeding with the matter further against the petitioner based on Annexure A1 private complaint or Annexure A2 Final Report and therefore, the proceedings are liable to be quashed. In the result, this Crl.M.C. is allowed and the proceedings as against the petitioner in C.C.No.354 of 2009 of the Judicial First Class Magistrate’s Court, Paravoor, Kollam District, are hereby quashed. ## Sd/- B. KEMAL PASHA, JUDGE. // True Copy // P.A. To Judge DSV/- Crl.M.C.No. 3647 of 2009 9