'Second Wife' Can't Maintain Complaint Against 'Husband' U/S 498A IPC; 'Dowry Prohibition Act' May Get Attracted In Such Cases: Allahabad HC

“…for the dowry, the performance of marriage is not necessary, and even a marriage contract is sufficient. 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 D.P. Act are attracted,” ruled a bench of Justice Arun Kumar Singh Deshwal.

The case in brief

The Court held thus while hearing a plea moved by the husband and his family members challenging the entire proceeding of the charge sheet as well as summoning order in connection with a case under Sections 498-A, 323, 504, 506 and Section 3/4 D.P. Act.

Before the High Court, the applicants argued that the proceedings initiated against them were unlawful. They contended that the complainant, who identified herself as the wife of applicant no. 1, was not a legally valid wife as such because applicant no. 1-husband had not obtained a divorce from his first wife and hence, prosecution under Section 498-A IPC and ¾ DP Act against the husband is not maintainable at the instance of such 'second wife' (complainant).

On the other hand, the Counsel appearing for the state argued that for Section 498-A IPC as well as Section 3/4 of the DP Act, strict interpretation regarding the validity of marriage should not be made and liberal consideration should be given to those persons who contracted for marriage and are cohabiting together.

High Court's observations

In light of these arguments and examining the facts of the case, the Court, at the outset, observed that to establish the elements of Section 498A of the Indian Penal Code (IPC), a woman must experience cruelty at the hands of her 'husband' or his relatives.

Additionally, the Court noted that according to Section 5 of the Hindu Marriage Act, for a marriage to be valid, neither party should have a living spouse at the time of marriage.

This implies that if the first wife is alive, a marriage with another woman is not considered valid and hence, such a 'second wife' cannot maintain a complaint under Section 498A IPC, the Court observed as it noted that such marriage is null and void in the eyes of law.

In this regard, the Court relied upon the Supreme Court's ruling in the case of Shivcharan Lal Verma And Anr. vs State Of Madhya Pradesh wherein it was held that if the marriage itself is null and void, then prosecution under Section 498-A IPC against the husband is not maintainable at the instance of the alleged wife.

“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),” the Court further ruled as it held that a second wife cannot maintain a complaint against her Husband.

So far as an offence under Section 3/4 of the DP Act was concerned, the Court noted that the main ingredients of these Sections in giving, taking or demanding dowry by any person and as per Section 2 of the Act, dowry may be given at, before or after the marriage.

The Court noted that for the dowry, the performance of marriage is not necessary, and even a marriage contract is sufficient.

Against the backdrop of this observation, the Court noted that 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 and 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.

Consequently, the Court quashed the proceeding under Section 498-A IPC, however, the proceeding under Section 323, 504, 506 I.P.C. and Section 3/4 of the DP Act was maintained and hence, the plea was partly allowed.

Advocate Saurabh Pandey appeared for the applicants

Case title - Akhilesh Keshari And 3 Others vs. State of U.P. and Another 2024 LiveLaw (AB) 208 [APPLICATION U/S 482 No. - 38288 of 2023]

Case citation: 2024 LiveLaw (AB) 208

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