The main legal point established in the judgment is that the prosecution under section 498A of the IPC and Sections 3/4 of the Dowry Prohibition Act, 1961 was not sustainable due to the complainant's own averment of being divorced four years ago, rendering the section inapplicable.

ORDER :

1. Leave granted.

2. The incident for which the appellants are being prosecuted is said to be as follows :

3. On 15.2.2012, at a meeting between the complainant-wife viz., Tausif Akhtar and her husband Mohammad Miyan along with his mother Saleeman Nisha and many other relatives who are about 9 in number, a demand for dowry was made. The wife is said to have refused to pay since the dowry has already been paid. Therefore, the husband is said to have got enraged and the mother-in-law Saleeman Nisha and sister-in-law of the complainant are said to have caught her hair and the husband is said to have given blow with fist because of which one tooth of the complainant-wife is said to have broken.

4. The complainant filed an FIR against the appellants alleging offences under sections 498A, 323, 325, 504 and 506 of the Indian Penal Code and sections 3/4 of the Dowry Prohibition Act, 1961.

5. The husband and other co-accused approached the High Court by filing petition under section 482 of the Code of Criminal Procedure (for short, the ‘Cr.P.C.’) for quashing the entire criminal proceedings. The High Court dismissed the said petition with liberty to the appellants-accused to file application for discharge before the trial court. The trial court dismissed the application for discharge. Being aggrieved, the appellants-accused filed revision petition before the High Court which was dismissed. Hence, this appeal by special leave.

6. Mr. R. K. Das, learned Senior Counsel appearing for the appellants-accused, submits that the prosecution under section 498A of IPC was clearly not tenable in view of the case of the complainant herself that there had been a divorce almost four years before filing of the FIR.

7. We find much substance in the submission made by Mr. Das, learned Senior Counsel appearing for the appellants-accused. Even in the FIR dated 18.8.2015, the complainant-wife has stated that her divorce had taken place about four years back. It is not possible to accept the contention made by learned counsel appearing on behalf of complainant-wife that she made the statement in ignorance of Sharia law. She is a Headmistress and must be credited with due knowledge of her meritorious status.

8. In view of her own averment that she was divorced four years ago, we are of the view that the prosecution is not sustainable under section 498A of the IPC and Sections 3/4 of the Dowry Prohibition Act, 1961.

9. Section 498A[498A. 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. 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.] of the IPC opens with the words “Whoever, being the husband or the relative of the husband of a woman….” Therefore, where the complainant approaches with a case that there has been a divorce long back i.e. four years ago before filing of the FIR, section 498A of IPC in terms would not be attracted. We accordingly consider it appropriate to quash the prosecution against all the accused persons under section 498A of IPC and Sections 3/4 of the Dowry Prohibition Act, 1961.

Order accordingly.

10. The prosecution in respect of other offences under sections 323, 325, 504 and 506 of IPC must however be dealt with differently.

11. True or false the charge is that the accused viz., husband Mohammad Miyan and his mother Saleeman Nisha, bit the c