The Allahabad High Court said that the proceeding under Section 498-A of the Indian Penal Code (IPC) is not maintainable against the husband at the instance of a second wife who is not legally wedded.

The Court was dealing with an instant application filed under Section 482 of the Criminal Procedure Code (CrPC) for quashing the entire proceeding arising out of a case under Sections 498-A, 323, 504, and 506 of the Indian Penal Code (IPC) and Sections 3 and 4 of the Dowry Prohibition Act, 1961 (DP Act).

A Single Bench of Justice Arun Kumar Singh Deshwal observed, “From the perusal of Section 498-A I.P.C., it is explicit that to attract the ingredients of this Section, a woman must be subjected to cruelty by her husband or his relative. However, the definition of the husband is unavailable either in I.P.C. or the Hindu Marriage Act of 1955. However, as per Section 5 of the Hindu Marriage Act, for a valid marriage, neither party to the marriage should have a living spouse at the time of marriage, meaning that if the first wife is alive, marriage with another woman is not valid. The relationship between such a man and woman cannot be as husband and wife. Therefore, proceeding under Section 498-A I.P.C. is not maintainable against such a husband at the instance of a second wife (not legally wedded).”

Advocate Saurabh Pandey appeared for the applicants and A.G.A appeared for the opposite parties.

In this case, an FIR was lodged by a woman under Sections 498-A, 323, 504, 506 of IPC and Sections 3 and 4 of DP Act against applicants alleging that she got married to the applicant no.1, six years back and out of their wedlock three children were also borne. However, applicants had started harassing her for dowry demand and subsequent applicants had also beaten her. Police after investigation had submitted the chargesheet against the applicants under the said provisions and cognizance was also taken.

The High Court in the above regard noted, “… it is clear that strict interpretation is required when interpreting the word husband in Section 498-A I.P.C. as the I.P.C. is a penal provision, not beneficial legislation where the liberal interpretation is permissible. Therefore, this Court holds that proceeding under Section 498-A I.P.C. by the opposite party no. 2, who is not the legally wedded wife of applicant no. 1, is not maintainable against applicants.”

The Court added that for the dowry, the performance of marriage is not necessary, and even a marriage contract is sufficient and if a male and female contracted for marriage and cohabiting together and the male partner makes any dowry demand from the female partner, then ingredients of Sections 3 and 4 of the DP Act are attracted.

“In the present case, appellants and opposite party no. 2 had been living as husband and wife and three children were also borne from their co-habitation therefore, the allegation of demand or receiving of dowry on the part of the applicants will attract ingredients of Section 3/4 D.P. Act, despite the fact, their marriage was not valid”, it further noted.

The Court concluded that there is sufficient material to make out a prima facie case under Sections 323, 504, and 506 of IPC.

Accordingly, the High Court partly allowed the application and quashed the proceeding.

Cause Title- Akhilesh Keshari And 3 Others v. State of U.P. and Another (Neutral Citation: 2024:AHC:54046)

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