IN THE HIGH COURT OF KARNATAKA AT BENGALURU 
THE HON’BLE MR. JUSTICE S RACHAIAH CRIMINAL REVISION PETITION NO. 1372 OF 2019

KANTHARAJU VERSUS STATE OF KARNATAKA 

• Sections 498A IPC Cruelty Complainant, who was the second wife of the petitioner, faced harassment and ill treatment from him, leading her to file a complaint Petitioner contended that since the complainant was the second wife, the basic ingredients of the provision did not apply Complainant in her evidence, being the mother of complainant both have consistently deposed and admitted that,she is the second wife of the petitioner Complaint filed by the second wife against the husband for the offense under Section 498-A of the IPC was not maintainable Conviction set aside.

Relevant Paras

9. On perusal of the above said provision, it shows that the husband or relative of a woman subjecting her to cruelty, shall be punished with imprisonment. It is needless to say that, “woman” in the said definition means and includes, legally wedded wife. As per the evidence of PWs.1 and 2, it is an admitted fact that, the complainant was the second wife of the petitioner.

10. The prosecution has to establish that, the marriage of PW.1 is legal or she is the legally wedded wife of the petitioner. Unless, it is established that, she is the legally wedded wife of the petitioner, the Courts below ought to have acted upon the evidence of PWs.1 and 2 that, PW.1 was the second wife. Once PW.1 is considered as second wife of the petitioner, obviously, the complaint filed against the petitioner for the offence under Section 498-A of IPC ought not to have been entertained. In other words, complaint filed by the second wife against the husband and her in-laws is not maintainable. The Courts below committed error in applying the principles and also the law on this aspect. Therefore, interference by this Court in exercising the Revisional jurisdiction is justified.
11. My view is fortified by the dictum Hon’ble Supreme Court in the cases stated supra. Now, it is relevant to refer the dictum of the Hon’ble Supreme Court to arrive at a conclusion as to whether the second wife is permitted to lodge the complaint against the husband for the offence under Section 498-A of IPC.

13. Similarly, the dictum of the Hon’ble Supreme Court in the case of P.Sivakumar, referred to supra, in para 7 of the said judgment, it reads thus:
“7. Undisputedly, the marriage between the appellant No.1 and PW-1 has been found to be null and void. As such the conviction under Section 498-A IPC would not be sustainable in view of the judgment of this Court in the case Shivcharan Lal Verma’s case supra. So far as the conviction under Sections 3 and 4 of the Dowry Prohibition Act is concerned, the learned trial Judge by an elaborate reasoning, arrived at after appreciation of evidence, has found that the prosecution has failed to prove the case beyond reasonable doubt. In an appeal/revision, the High Court could have set aside the order of acquittal only if the findings as recorded by the trial Court were perverse or impossible.”
14. The ratio of these two judgments of the Hon’ble Supreme Court clearly indicates that, if the marriage between the husband and wife ended as null and void, the offence under Section 498-A of IPC cannot be sustained.
15. Admittedly, in the present case, the complainant in her evidence, PW.2 being the mother of PW.1 both have consistently deposed and admitted that, PW.1 is the second wife of the petitioner. Accordingly, the concurrent findings of the Courts below in recording the conviction requires to be set aside.

 

 

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CRLRP1372-19-17-07-2023 KANTHARAJU VERSUS STATE OF KARNATAKA JUDGMENT THE LAW LITERATES

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