A petition was dismissed challenging a First Information Report (FIR) for an offence of cruelty under Section 498A and has directed police to investigate the matter.(Karnail Chand and others v. State of J&K and another). A single Judge Bench of Justice Sanjay Dhar on 23.12.2020 has ruled that under Section 498A of Ranbir Penal Code, a man and his relatives can be prosecuted for the offence of Cruelty even after marriage if such relation with woman was void.
The Jammu & Kashmir Court has held that irrespective of the legitimacy of the marriage, section 498A IPC says when a person enters into a marital arrangement with a woman, he is covered by the definition of ‘Husband’. It was, therefore, the case of the petitioners that since the respondent/complainant is not the legally wedded wife of accused Kuldeep Kumar, as such, offence under Section 498A cannot be made out against the petitioners.
The wife submitted before the court that her husband along with her in-laws used to harass her and subject her to cruelty. She also claimed that her husband was not paying maintenance to her after throwing her out of the matrimonial home. It was, therefore, contended by the petitioner that as per Hindu law, a person is prohibited from solemnizing a second marriage during the lifetime of his first wife and in case he does so, the second marriage would be void ab initio.
Therefore, the petitioners argued that since the respondent is not legally married wife of accused then the offence under Section 498A cannot be made out against the petitioners.
The Court, however, placed reliance on the judgment of the Supreme Court in A Subhash Babu v State of AP and another [(2011) 7 SCC 616] and held that when a person enters into a marriage arrangement with a woman, he is covered by the definition of ‘Husband’ as contained in Section 498A irrespective of the legality of marriage. The Court, therefore, dismissed the petition with a direction to the police to investigate the matter. The interim order of stay of proceedings of the impugned FIR was also vacated.