Second marriage to be proved.—Validity of second marriage, is required to be proved by the prosecution by satisfactory evidence: S. Nagalingam v. Sivagami (2001) 7 S.C.C. 487, In a charge of bigamy the accused-husband admitted second marriage. But the Magistrate having found no satisfactory proof of the valid second marriage by performing all religious formalities has acquitted the accused of the charge of bigamy on the ground that the validity of second marriage is not established. The High Court set aside the acquittal and CortvicfeiJ the accused on the basis of his admission that he contracted second marriage. The Supreme Court in appeal by special leave has set aside the order of the High Court. It is held-that admission of the accused would not necessarily prove that he had taken the second wife after performing due ceremonies and unless the same is proved by prosecution the charge under S. 494,1.P.Code is not established: P. Satyanarayana v. P. Mallaiah (19%) 6 S.C.C. 122: 1996 S.C.C. (Cr.) 1120. However, when the testimony of the eye-witnesses regarding performance of second marriage is natural, cogent and convincing and the factum of second marriage is established also from entries of contents of Hindu Marriage Registrar, the factum of second marriage have been established and the accused is guilty of bigamy. But proof of second marriage in accordance with religious ceremonies and rites of the parties is not necessary in view of S. 7-A of the Hindu Marriage Act when marriage is registered: Manjula v. Mani 1998 Cr.L.J. 1476 (Mad.).
Offence under section 17 of Hindu Marriage Act.—S. 17 of the Hindu Marriage Act lays down that any marriage between two Hindus solemnized after the commencement of the Act if at the date such marriage either party has a spouse living would attract S. 494 and S. 495,1.P.Code. But the word “solemnized” means that the marriage is solemnized with proper ceremonies and induce form. So in order to attract S. 17 of the Hindu Marriage Act the alleged second marriage shall be a valid marriage under the Hindu “law. Mere going through certain ceremonies is not enough when the essential ceremonies were not performed: Bhaurao v. State A.I.R. 1965 S.C. 1564. It must be marriage valid in form: Subir v. State (1991) 2 Cal.L.J. 71. Second marriage by a Hindu male prior to the enforcement of Hindu Marriage Act is no offence: Jagdish Chandra Dixit v. Rabindra Dixit 1991 Cr.L.J. 1697 (All.). Second marriage of Hindu husband after his conversion to Islam is void marriage in term of S. 494, I.P.Code. It is violative of justice, equity and good conscience and also violative of rules of natural justice: Sarla Mudgal, President, Kalyani v. Union of India A.I.R. 1995S.C. 1531: (1995) 3 S.C.C 635.
Paternity test in a bigamy case.—When the first wife filed a complaint against the husband and others under Ss. 494 and 109, I.P.Code, the alleged second marriage and the paternity of the child had been disputed by the accused person. The complainant prayed for blood te’st of the accused husband, the alleged second wife and the child. The trial judge rejected the prayer. In revision the learned Judge of Madras High Court upheld the order on taking the view that it is for complainant to prove only that during the subsistence of the first marriage, second marriage took place and essential ceremonies were performed. So the paternity test is not necessary to bring home the charge: Gomathi v. Vijayaraghavan 1995 Cr.L.J. 81 (Mad.).
Complaint by person aggrieved.—In view of S. 198, Cr.P.Code no cognizance for the offence under S. 494 or S. 495, I.P.Code can be taken by the Magistrate except upon a complaint by the person aggrieved. This is mandatory: G. Narasitnan v. T.V. Chokappa A.I.R. 1972 S.C. 2669.
2[CHAPTER XX-A
OF CRUELTY BY HUSBAND OR RELATIVES OF HUSBAND 498-A. Husband or relative of husband of a woman subjecting her to cruelty.—Whoever, being the husband or the relative of the husband of a woman subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine.
2. Chap. XX-A inserted by Act 46 of 1983,8.2.
Explanation.—For the purpose of this section, “cruelty “means—
(a) any wilful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman; or
(b) harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand. ]
COMMENTS
Cruelty against married woman by husband or his relatives.—To attract the offence under S. 498-A, I.P.Code it must be established that the cruelty or harassment to wife was to force her to cause bodily injury to herself or to commit suicide or the harassment was to compel her to fulfil illegal demand for dowry. However, it is not every type of harassment or cruelty that attracts this section: Sarla v. State 1990 Cr.L.J. 407 (Bom.). Harassment for dowry is also cruelty. When repeated demands for dowry articles and money on newly married wife and on her parents had been made and the wife stated in his dying declaration about much demands after her marriage till her death the husband and mother-in-law are guilty under S. 498-A: WazirChandv. State AIR. 1989 S.C. 376:1989 Cr.L.J. 809. The mother-in-law of the deceased told the married wife that she was a woman of evil luck and had swallowed her baby and she should commit suicide. The husband also physically assaulted her. The deceased was subjected to abuses, humiliation and mental torture from the beginning of the married wife which forced her to commit suicide. The offence under S. 498-A, I.P.Code by husband and mother-in-law is established: State of W.B. v. Orilal Jaiswal (1994) 1 S.C.C. 73: A.I.R. 1994 S.C. 1418:1994 Cr.L.J. 2104.
In any event the willful act or conduct ought to be the proximate cause in order to bring home the charge under S. 498-A and not de hors the same. To have an event sometime back cannot be termed to be a factum taken note of in the matter of a charge under S. 498-A. The legislative intent is clear enough to indicate in particular reference to Explanation (b) that there shall have to be a series of acts in order to be a harassment within the meaning of Explanation (b). The letters by itself though may depict a reprehensible conduct, would not, however, bring home the charge of S. 498-A against the accused. Acquittal of a charge under S. 306, though not by itself a ground for acquittal under S. 498-A, but some cogent evidence is required to bring home the charge of S. 498-A as well, without which the charge cannot be said to be maintained: Girdhar Shankar Tawade v State of Maharashtra A.I.R. 2002 S.C. 2078: (2002) 5 S.C.C. 177: J.T. (2002) 4 S.C. 357:2002 Cr.L.J. 2814.
For the fault of the husband, the in-laws or the other relations cannot, in all cases, be held to be involved in the demand of dowry. In cases where such accusations are made, the overt acts attributed to persons other than husband are required to be proved beyond reasonable doubt: Kans Raj v. State of Punjab 2000 Cr.L.J. 2993 (S.C.).
Section 498-A vis-a-vis section 304-B, I.P.Code.—S. 498-A and S. 304-B, I.P.Code are not mutually exclusive. These provisions deal with two distinct offences. Even if cruelty defined in the Explanation to S. 498-A, I.P.Code will be the same for the purpose of S. 304-B, I.P.Code, yet under S. 498-A cruelty itself if punishable. But under S. 304-B it is the dowry death which is punishable and such death should have occurred within seven years of the marriage. But no such period is mentioned is S. 498-A. Moreover, a person charged under S. 304-B can be convicted under S. 498-A without the charge being there, if such a case is made out. However, from the point of view of practice and procedure and to avoid technical defects charges under both the sections should be framed. But on convicting a person under S. 405-B, LP.Code which is a major offence, no separate sentence need not be passed under S. 498-A, LP.Code: Shanti v. State A.I.R. 1991 S.C. 1226:1991 Cr.L.J. 1713; Keshab v. State 1995 Cr. L.J.I 74 (Ori.).
Explanation to S. 304-B refers to dowry “as having the same meaning as in S. 2 of the Act”, the question is: what is the periphery of the dowry as defined therein? The argument is, there has to be an agreement at the time of the marriage in view of the words “agreed to be given” occurring therein, and in the absence of any such evidence, it would not constitute to be a dowry. It is noticeable, as this definition by amendment includes not only the period before and at the marriage but also the period subsequent to the marriage: State of Andhra Pradeshv. Raj Gopal Asawa A.I.R. 2004S.C 1933: (2004) 4S.C.C. 470:2004Cr.L.J. 1791.
Though the death of the deceased was caused by the burns within seven years of marriage yet soon before her death she was not subjected to cruelly or harassed by the appellants for or in connection with the demand of dowry, no presumption could be drawn under S. 113-B of the Evidence Act against the appellants: Chtmdra Devi v. State ofRajasthan 2002 Cr.L.J. 1075 (Raj.).
When there is no satisfactory proof that soon before the death the wife was subjected to cruelty and harassment for or in connection with demand for dowry, the charge under S. 304-B, l.P.Code cannot be established. But when there is overwhelming evidence as to ill-treatment, the accused must be held guilty under S. 498-A, l.P.Code: Sham Lal v. State A.l.R. 1997 S.C. 1873: 1997 Cr.L.J. 1927. When the suicide of the wife was not due to any ill-treatment or harassment for or in connection with demand for dowry but for other factors including cruelty of the husband, even though offence of dowry death is not proved, the accused is guilty of S. 498-A, l.P.Code: Pyare Lal v. State (1997) 11 S.C.C. 552.
When in the instant case the charge of murder of wife by the accused husband and father-in-law could not be established and for the unnatural death of wife the accused persons cannot be prosecuted under S. 304-B for the unnatural death in the well behind the house of the in-laws, yet the evidence adduced has clearly established that the wife was subjected to cruel treatment by the accused in connection with dowry and for other causes. So, the Supreme Court has held that even though no charge was framed against the accused-person, they can be convicted under S. 498-A, l.P.Code: Balaram Prasad Agrawal v. State 1997 Cr.L.J. 1640 (S.C.). However, when the death of the accused mother and her nine month old child by falling into well was not proved to be suicidal and post-mortem report gave the opinion that the death was accidental and there was no evidence that the deceased-mother was subjected to cruelty and harassment in connection with dowry, neither the charge under S. 304-B nor under S. 498-A, l.P.Code can be established against the accused-husband and in-laws of the deceased: Niranjan v. State 1998 Cr.L.J. 630 (Ori.).
Sections 498-A and 306 are independent and constitute different offences.—Ss. 498-A and 306, l.P.Code are independent and constitute different offences. Though, depending on the facts and circumstances of an individual case, subjecting a woman to cruelty may amount to an offence under S. 498-A and may also, if a course of conduct amounting to cruelty is established leaving no other option for the woman except to commit suicide, amount to abetment to commit suicide. However, merely because an accused has been held liable to be punished under S. 498-A, l.P.Code, it does not follow that on the same evidence he must also and necessarily be held guilty of having abetted the commission of suicide by the wo man concerned: Ramesh Kumar v. State ofChhatisgarh (2001) 9S.C.C. 618.
Offence under section 498-A, whether or not committed—Illustrative cases.—(1) When the witnesses testified that the deceased was harassed by accused-husband for not complying with unlawful demands and the statement in the diary made by the wife corroborated it, the offence under S. 498-A, l.P.Code against the husband is proved: Alamuri v. State 1995 Cr.L.J. 2127 (Andh. Pra.).
(2) The husband beat his wife but there was reconciliation between them and thereafter both were living together. During her stay with her parents immediately before her death she did not complain of any ill-treatment. So neither the offence under S. 304-B nor under S. 498-A, l.P.Code is proved: Keshabv. State 1995 Cr.L.J. 174 (Ori.).
(3) When the parents of the deceased-wife voluntarily gave dining table but the accused-husband had staled that he would have preferred cash. This would not amount to demand for dowry. The evidence regarding cruelty by the accused is also not reliable. The wife also did not implicate her husband in her dying declaration. No offence under S. 498-A is proved: S. Abboy Naidu v. R. Sundararajan 1994 Cr.L.J. 641 (Mad.).
(4) But the harassment, ill-treatment and torture by the husband and the mother-in-law due to non-fulfilment of demand of dowry having been established, the offence under S. 498-A, l.P.Code has been proved against them: P. Krishna Murthy v. State 1994 Cr.L.J. 506 (Andh. Pra.).
(5) The husband disowned the paternity of the child born and expected to be born soon. He also drove the wife from the matrimonial house during pregnancy alleging false and baseless charges. The acts amount to cruelty: Bai KhadijMbi Umaraliya Bibi v. HusenYusufl994 Cr.L.J. (N.O.C.) 198 (Guj.).
(6) The wife was subjected to harassment and cruelty continuously with demand of dowry and on the ground of being barren, the offence under S. 498-A is established: P.P. Raov. StateofA.P. 1994Cr.L.J. 2632 (Andh. Pra.).
(7) Evidence on record showed that the complainant was harassed by the accused-husband right from the date of marriage with a view to coerce her to meet unlawful demand for dowry. The complainant’s evidence is corroborated by the evidence of her father. So the charge against the husband under S. 498-A, I.P.Code is clearly established: Boopathyv. State 1998 Cr.L.J. 2405 (Mad.).
(8) There was quarrel between the wife and husband only a day before her death. The wife was repeatedly taunted, mal-treated and mentally tortured right from the very date of marriage. The torture led the deceased to commit suicide. The accused can be convicted both under S. 304-B and S. 498-A, IP.Code: Pawan Kumar v. State (1998) 3 S.C.C. 309: 1998 Cr.L.J. 1144.
(9).The wife died by burns within 7 years of marriage. Evidence on record showed that the death was not accidental. But prosecution could not prove that soon before her death deceased was subjected to cruelty or harassment in connection with demand for dowry. But the fact that ill-treatment was made out was established. So even if the accused cannot be convicted under S. 304-B, I.P.Code but he can be convicted under S. 498-A, l.P.Code.Rameahv. State 1998 Cr.L.J. 165(P.&H).
(10) The charge of murder of the wife by the husband and his relations is not proved. But evidence on record was there that there was cruelty by the parents-in-law leading to the inference that the wife committed self-immolation as she was unable to bear the cruelty. There being no evidence of harassment on account of demand of dowry, the conviction of the accused person under S. 302/34 was converted by Supreme Court to one under S. 498-A,l.P.Code:KanchyKomurammav. State 1996 S.C.C. (Cr.) 31: (1995)4(Supp.)S.C.C 118.
(11) The wife was murdered in her bedroom and the dead body was burnt in that very room and there is evidence that the wife was subjected to cruelty and harassment for or in connection with dowry. The charge under S. 302, S. 201 and S. 498-A, I.P.Code have been established. The acquittal by High Court has been set aside by Supreme Court: State ofU.P. v. Ramesh A.I.R. 1996 S.C. 2766:1996 Cr.L.J. 4002.
(12) A charge that the accused was friendly with one girl is only in the form of a suggestion and said girl, who was even cited as a witness was not examined, held, that cannot be an aspect of cruelty: State v. K. Sridhar2000 Cr.L.J. 328 (Karn.) (D.B.).
(13) The evidence on record is consistent with the allegations made by the deceased in her dying declaration in respect of the conduct of the accused that he was in the habit of coming home in a drunken state and abuse and beat her. On this evidence, there is no reason to discard the dying declaration of the deceased on the aspect that the accused used to get drunk and beat her and abuse her consistently. These acts attributed to the accused constitute cruelty within the meaning of S. 498-A, I.P.Code: Bommidi Rajamallu v. State of Andhra Pradesh 2001 Cr.L.J. 1319 (Andh. Pra.).
Constitutional validity of section 498-A.—The husband and the relatives of the husband subjecting a married woman to cruelty punishable under S. 498-A form a class apart by themselves. So there is reasonable classification. S. 498-A, I.P.Code is, therefore, not arbitrary and it is not violative of Art. 14 of the Constitution: Krishan Lal v. Union of India 1994 Cr.L.J. 3472 (P.&H.) (F.B.).
Section 498-A, if retrospective.—It is not retrospective in operation: Renu v. State 1991 Cr.L.J. 2049 (P.&H.); Prasanna v. Dhahalakshmi 1989 Cr.L.J. 1829 (Mad.). But according to Bombay High Court S. 498-A is attracted if the complaint is lodged for cruelty prior to 25-12-1989, that is, the date when S. 498-A has been introduced in the Indian Penal Code: Vasant v. Stale 1987 Cr.L.J. 901 (Bom.).
Section 498-A, if cognizable.—Section is cognizable if the conditions mentioned in column 4 of the Schedule to the Code of Criminal Procedure are fulfilled, otherwise it is non-cognizable. But if a complaint is made before the Magistrate, he may send it to police under S. 156(3), Cr.P.Code for investigation and the police may file chargesheet on the basis of which the Magistrate can take cognizance: Khursheed v. State (1989) 2 Crimes 447 (Raj.).
really useful.