Calcutta High Court Discharges Widow In FIR Accusing Her Of Marrying A Married Man And Subjecting His Wife To Cruelty

The Calcutta High Court at Jalpaiguri circuit bench has discharged a widow in an FIR under Sections 498A, 494 and 506 of IPC accusing her of marrying the husband of the complainant, on the ground that materials on record including complaint prima facie revealed that the allegations were levelled against the against the principal accused i.e. the husband of the complainant.

The single judge bench of Justice Ajoy Kumar Mukherjee observed:

“Here the materials on record including complaint prima facie reveales that allegations were leveled against principal accused, i.e., husband of defacto complainant and as such the court below ought to have held that the criminal prosecution against the present petitioner under the aforesaid section is not sustainable.”

The complainant alleged that she was treated with physical and mental cruelty by her husband for non-fulfilment of his further demand of dowry, therefore, finding no other alternative, she along with her child returned to her paternal house. In the complaint against the petitioner, she alleged that her husband married the widow and after knowing about it, she tried to make contact with him but she was threatened over phone by that he will dissolve their matrimonial tie.

On the basis of the complaint, police started the investigation and submitted the charge-sheet against the petitioner as well as against the husband of complainant under Section 498A (Husband or relative of husband of a woman subjecting her to cruelty), Section 494 (Marrying again during life-time of husband or wife) and Section 506 (Punishment for criminal intimidation) of IPC.

The petitioner filed an application for discharge under Section 239 of CrPC before the Judicial Magistrate, 1^st Court, Jalpaiguri which was dismissed by the Magistrate vide order dated February 17, 2023. The petitioner filed an application under Section 482 of CrPC before the High Court assailing the impugned order of the Magistrate.

The Counsel appearing for the petitioner submitted that the petitioner is neither wife of the defacto complainant’s husband nor the relative of her husband and in the charge sheet, police failed to provide any documentary evidence which can substantiate the alleged second marriage of the petitioner with the husband of the complainant, so that the present case can attract Section 498A of IPC.

It was further submitted that there cannot have be application of Section 494 of the IPC against present petitioner.

On the other hand, the counsel appearing for the State contended that since the husband of the complainant has married the present petitioner, so the petitioner is the present wife of her husband, who has also inflicted cruelty and therefore, Section 498A is attracted against the present petitioner.

The Court noted that Section 494 of the Indian Penal Code deals with a situation where a wife having her husband living, married for the second time. It said that as per FIR the petitioner admittedly was/is a widow and as such, Section 494 cannot have any application in the present context.

It further observed that on perusal of the case diary as well as materials available in the record, there is nothing to show that the present petitioner is married with the husband of the complainant nor there is any specific allegation against her that she has inflicted any kind of mental or physical cruelty upon the complainant.

“Even if for the sake of argument, if court comes to conclusion that there is any marriage with the petitioner, even then Section 498A does not attract in the present context, as there is no allegation of inflicting cruelty by the present petitioner anywhere in the record. Moreover petitioner cannot be treated as relative of complainant’s husband in view of bar laid down in section 5 of the Hindu marriage Act, 1955,” the court said.

The court said that the essential ingredients to attract Section 498A of the CrPC are completely absent against the present petitioner.

“Beside adding a sentence casually at the end of FIR to attract another section, there is also no material which can support proceeding against the present petitioner under Section 506 of the Code,” it added.

Thus, the court held that continuance of further proceeding against the present petitioner will be a sheer abuse of process of court as the chance of conviction of the present petitioner either under Section 498A or 494 or 506 of the IPC is bleak.

Accordingly, the court discharged the petitioner in the present case.

Case Title: In re: Piyali Mandal Majumder @ Madhumita Mandal v. State & Anr.

Coram: Justice Ajoy Kumar Mukherjee

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