Religious/Customary Marriage Has 'Colour Of Legal Marriage', Woman Can Seek Protection Against Cruelty U/S 498A IPC: Kerala High Court

In the facts of the case, the husband and in-laws, accused of committing cruelty upon a purportedly 18-year-old girl, had challenged their conviction, stating that there was no legal marriage between the parties and only a registration agreement, since the girl was allegedly a minor.

Justice Sophy Thomas in its order observed that although there was no registration of marriage under Secular law, the Nikah of the girl who was originally Hindu was conducted with the first accused after she converted to Islam. The Court thus stated that marriage of minor girl on attaining puberty was considered as a valid marriage under the Muslim Personal Law and thus offence of cruelty would be attracted against her husband and in-laws.

"Here, there is nothing to show that...was a minor at the time of 'Nikah'. If at all she was a minor, she had attained puberty, and so, that marriage was valid under Mohammedan Law. That marriage was never called in question under the Child Marriage Act or any other special enactment inviting penal provisions. There was clear admission from the accused that...was the wife of the 1st accused. Their 'Nikah' was conducted at the house of Mr.Pocker as deposed by PW16, and that marriage is still recognised under Muslim personal law. It was not a case of 'no marriage' and only 'live-in-relationship'," the court noted. 

Referring to high court's decision in Narayanan v. State of Kerala (2023) the court thereafter said: 

“when there is some form of marriage, either religious or customary, which has the colour of a legal marriage, the woman can seek protection under Section 498A of IPC, though later, for some reason as to age, mental status, religion, consanguinity, spouse living etc. etc., the marriage was found to be invalid in the eye of law”.

Background Facts

The wife of first accused committed suicide by consuming poison in June 2002 at Wayanad district allegedly due to matrimonial cruelty and dowry harassment by her husband and in-laws. The prosecution said that the deceased was a Hindu girl who converted to Islam for marrying the first accused. Their marriage was conducted after she became pregnant and had to undergo abortion, following the intervention of religious leaders of both communities. It was alleged that after marriage, her husband and in-laws mistreated her, mentally and physically harassed her which drove her to commit suicide.

The Trial Court sentenced and convicted the accused persons (husband, in-laws) for three years imprisonment and fine under Section 498A read with Section 34 of IPC. Aggrieved by the conviction, the accused approached the high court in appeal.

The Counsel for accused argued that there were no specific incidents of cruelty to attract an offence of cruelty or harassment. It was stated that there was only a marriage agreement and no legal marriage between the accused and the girl since she was a minor. It was thus argued that even if Mohammedan Law permits a minor Muslim girl to marry on attaining puberty, under secular law, marriage of a minor girl was invalid as per the Prohibition of Child Marriage Act, 2006 and that no conviction can be sustained under IPC Section 498A without a valid marital relationship.

On the other hand, the Public Prosecutor submitted statement of witnesses and evidences to prove specific allegations of wilful conduct from the part of accused which led to her suicide. The Public Prosecutor further stated that as per the Mohammedan law, a girl on attaining puberty can enter into marriage contract.

Observations

The Court found that the girl who was a Hindu, underwent religious teachings and converted to Islam for her marriage to the first accused. The Court noted that Nikah was conducted and the mother of the first accused gave the girl a gold necklace as 'Mahar' (usually money given to the bride) and that she stayed with them in their house.

The Court stated that there was no evidence proving that the girl was minor when Nikah was conducted and noted that she might have attained the age of majority by that time. Additionally, the Court stated that there was no dispute that Nikah was conducted between the first accused and the girl.

The Court stated that woman could seek protection under Section 498A of the IPC if there was a religious or customary marriage between the parties which has the color of legal marriage, even if it was later found to be invalid as per law.

The Court thus concluded that even if the girl was minor, her Nikah on attaining puberty was valid marriage under the Mohammedan law. “If at all she was a minor, under Muslim Law, a minor girl can contract marriage after attaining puberty. Under Mohammedan Law, still that marriage is recognised as valid”, Court said.

It further stated offences pertaining to marriage, such as matrimonial cruelty and dowry harassment which carry penal consequences under special statutes like the Dowry Prohibition Act would take precedence even if the validity of the marriage performed under the the customary or personal law was questioned.

“When a marriage which is valid under the customary or personal law or any act committed within that marriage are called in question as it constitute an offence under a special statute, inviting penal consequences, no doubt, the special law will prevail, in spite of legality of that marriage under the customary or personal law. But the marriage under the customary or personal law, which is otherwise valid, has to be treated as valid between parties to that marriage for all practical purposes, unless and until it is challenged by any of the parties to that marriage, and declared void on any valid grounds.”

As such, the Court stated that the accused are liable for conviction under Section 498A read with Section 34 of the IPC.

Regarding the sentence, the Court, while noting that the "allegations" against accused Nos.1 (husband) and 2 (mother-in-law) were "quite serious which ultimately drove that girl to commit suicide", found that the offence took place in 2002 and 22 years have elapsed since then. It also noted that the first accused (husband) was only 19-years-old at that time. Consequently, the Court sentenced the first accused (husband) and second accused (mother-in-law) to 1.5 years of imprisonment and fine, while the third (father-in-law) and fourth (brother-in-law) accused were imposed with four months imprisonment and fine.

Case Title: X v State of Kerala

Counsel for Appellants: Advocate Babu S Nair

Counsel for Respondents: Public Prosecutor Seena S

Case Number: CRL.A NO.847 OF 2007

Citation: 2024 LiveLaw (Ker) 731

Click Here To Read/Download Order