Ex-Wife Can File Complaint Under Section 498A IPC Only For Harassment Allegedly Meted Out During Subsistence Of Marriage: Gujarat High Court

Justice Jitendra Doshi held, “... allegations of the offence u/s 498A of the IPC even can be maintained at the instance of the divorcee wife, provided that she alleges the incident of harassment and cruelty which could have been meted out while marriage was subsisting.”

“However, she cannot file complaint alleging offence u/s 498A of the IPC putting allegation of an incident, which could have been taken place subsequent to the divorce. Once the competent Court passed the decree of divorce, the marital status of the husband and wife is snapped and the pre-requisite condition of section 498A of the IPC “being the husband” or “relatives of the husband” disappears,” Justice Doshi added.

The above ruling came in a petition filed under Sections 482 of the Code of Criminal Procedure, 1973 by complainant's former husband and his relatives, for quashing the impugned FIR under 498(A), 294(b), 323, 114, 506(2), 494 and 114 of the IPC.

According to the FIR filed by Sonalben, her in-laws and family members subjected her to physical and mental harassment. This mistreatment escalated to the point where they would incite her husband to have her physically assaulted, she claimed. Sonalben further claimed she was coerced into taking medication to terminate her pregnancy and when she refused, her husband threatened her life and abandoned her at her maternal home.

On finding that her husband had remarried, Sonalben said she decided to file a complaint against her in-laws for emotional and physical abuse. By this time, her husband had obtained a divorce decree. So, the complainant was a divorced wife at the time of filing the impugned FIR.

In its verdict, the court highlighted that the primary charges mentioned in the impugned FIR pertain to sections 498A and 494 of the Indian Penal Code (IPC).

While explaining Section 498A of the IPC, the court underscored that the terms used therein, such as "the husband" and "relatives of the husband" refer to individuals who are currently "the husband" or "relatives of the husband," either in their role as a husband or in the state of being a husband.

“The simple meaning is that for levelling the allegations of offence, the accused must be “the husband” or “relatives of the husband” or he could be “in capacity of the husband” or “in capacity of relatives of the husband”. This expression does not include “former husband” or “ex-husband” or “relative of the former husband or ex-husband” the Court said.

In this case, the petitioner No.1 was no longer the husband of the complainant, and the other petitioners were not relatives of the complainant's husband, Court said.

Nonetheless, it noted that section 498A though uses expressions “the husband” or “relatives of the husband”, it also used the word “woman” and not “wife”. Thus it held that offence under Section 498A IPC can be maintained by a divorced wife also, provided she alleges the incident of harassment and cruelty which could have been meted out while marriage was subsisting.

Upon reviewing the FIR in this case, the court found that the complainant had not alleged instances of harassment and cruelty during the period when the marriage was intact. The FIR seems to indicate that the allegations were aimed at events occurring after the divorce, Court said.

Upon examining the FIR, the court noted that it lacked specific details regarding the alleged acts of harassment or cruelty during the marriage. Additionally, the court pointed out that the divorce decree, dated February 25, 2014, effectively terminated the marital status of petitioner No.1 and the complainant. The FIR, filed on December 26, 2015, came after the divorce had been finalized. The court also acknowledged that the complainant learned about petitioner No.1's subsequent marriage on August 2, 2015, and consequently accused him of offenses under Section 494, along with Section 498A and other related IPC offenses.

The Court opined, “It appears that the FIR is filed for wracking vengeance and is a counterblast to the divorce decree granted by the competent Court in favour of the petitioner No.1. As observed in earlier part of the order and judgment, on the date of filing the FIR, status of husband and wife was splintered. FIR does not disclose allegation of cruelty or harassment for the time period when marriage was prevailing. Impugned FIR on its bare face indicates that it is filed against former husband and his relatives by divorcee wife. Reading between the lines, the FIR indicates that it is filed to achieve desired motive. No case for offence u/s 498A r/w 494 and allied offences of the IPC are made out.”

“On reading the FIR as it is, it does not disclose essential ingredients of offence punishable u/s 498A as well as u/s 494 and other allied offence of the IPC. Thus, allowing the FIR to continue into investigation and further continue into criminal case would be humiliating to the petitioners and it would amount to abuse of process of the Court. Therefore, the proceedings are required to be quashed and set aside to meet with the ends of justice,” the court added, while allowing the petition and quashing and setting aside all consequential proceedings arising therefrom.

Case Title: Rameshbhai Danjibhai Solanki & 7 Other(S) Versus State Of Gujarat & 1 Other(S) 

Case Citation: 2023 Livelaw (Guj) 136

Case No.: R/Criminal Misc.Application No. 3259 Of 201

Appearance: Ms E.Shailaja(2671) For The Applicant(S) No. 1,2,3,4,5,6,7,8 Mr Nirad D Buch(4000) For The Respondent(S) No. 2 Mr Ronak Raval, Addl. Public Prosecutor For The Respondent(S) No. 1

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