J&K HC: A Woman in Void Marriage Can Also File Complaint Under Section 498A

A single-judge Bench of Justice Sanjay Dhar of Jammu & Kashmir High Court held that even if the marriage entered into is void then also a man and his relatives can be prosecuted for the offence of cruelty under Section 498A of Ranbir Penal Code (RPC).  

When a person marries a woman, he is covered by the definition of ‘Husband’ contained in Section 498A RPC: J&K HC 

While dismissing a plea filed by the petitioner challenging the First Information Report lodged for the offence of cruelty under Section 498A the Court was  of the  view that when a person enters into a marital arrangement with a woman, he is covered by the definition of 'Husband' contained in Section 498A RPC irrespective of the legitimacy of the marriage. Therefore the court lifted the interim stay on the probe.  This judgement came amidst the complaint filed by a woman before the Udhampur police station stating that she got married to one Kuldeep Kumar two year ago and she has a son born out of that conjugal relationship.  

Further, she 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. 

Since the woman is not legally the wife of the accused then the offence under Section 498A cannot be made out: Petitioners  

The petitioners, who are parents, wife and another woman claiming to be the legally wedded wife, moved the High Court challenging the FIR. They argued that as Kuldeep Kumar, the accused was already married to another woman, there was no scope for him to get married for the second time during the lifetime of his first wife. 

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. 

Further, the petitioners tabled the documents in support of this assertion. In fact, the investigating agency had also found that accused Kuldeep Kumar was already married to another woman which was subsisting at the time when he entered into the second marriage with the complainant. 

On that basis the petitioner submitted before the court that according to Hindu law, a person is not allowed to solemnize second marriage during the lifetime of his first wife and in case he does so, the second marriage would be void ab initio. 

The petitioners contended that even if the complainant argues that she had entered into a matrimonial relationship with Kuldeep Kumar, he cannot be considered as a legally recognised husband of the complainant. 

The petitioners can be prosecuted for an offence under Section 498A: HC 

The J&K High Court, relied upon the top Court's verdict in A Subhash Babu v State of AP and another case and held that when a person enters into a matrimonial relationship, he is covered by the definition of 'Husband' as contained in Section 498A irrespective of the legality of the marriage. Hence, even though the marriage is not valid, the petitioners can be prosecuted for an offence under Section 498A. On that ground, the bench 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.