Can a former/divorcee husband be held liable for offence under Section 498A of Indian Penal Code (IPC, for short)? Is existence of marriage between accused and the victim, a requirement to constitute offence under Section 498A IPC? Can the court take cognizance of offence under section 498A IPC on the basis of a complaint filed by a divorced woman? These are precisely, the questions to be answered in this case.

2. A private complaint was filed by a divorced wife against her former husband and his relatives before a Magistrate of First Class. It was alleged in the complaint that petitioner subjected the complainant/first respondent to cruelty during subsistence of their marriage and also after the divorce. Magistrate forwarded the complaint to police under section 156(3) of code of criminal procedure for investigation and a charge sheet was filed against the accused under section 498A and 34 of IPC. Petitioner is the first accused in the case. He seeks to quash the complaint and the proceedings initiated against him.

3. Learned counsel appearing for petitioner contended that petitioner cannot be prosecuted for offence under section 498A IPC since admittedly, he is not ‘the husband’ but only the ‘former husband’ of the complainant. According to him, offence under section 498A IPC will lie only against ‘the husband’ and ‘the relatives of the husband’. But, on account of the divorce petitioner ceased to be the ‘husband’ and no marital relationship exists between complainant and petitioner. Section 498A IPC deals with a matrimonial offence and existence of a matrimonial relationship between the accused and the victim is a pre-requisite to constitute offence under the said section. But, petitioner not ‘being the husband’ of the complainant, he cannot be proceeded against under section 498A IPC. These in short, are the arguments.

4. The above argument appears to be built upon the language of section 498A IPC. A plain reading of section 498A IPC shows that the expressions used therein referring to the accused are, ‘the husband’ and ‘the relatives of the husband’. But petitioner admittedly, is not ‘the husband’. He can be treated only as ‘former husband’ or ‘divorcee husband’ of the victim. So, the question is, can a former/divorcee husband be proceeded against for offence under section 498A of Indian Penal Code? In existence of marriage between the accused and the victim, a requirement to constitute offence under section 498A IPC? Can the court take cognizance of offence under Section 498A IPC on the basis of a complaint filed by a divorced woman?

5. To seek answers to the above three questions, a reading of section 498 IPC is absolutely necessary. The said section is therefore extracted as hereunder:

“S.498-A. Husband or relative of husband of a woman 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 purposes of this section, “cruelty” means-

(a) any willful 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.”

6. From a reading of section 498A IPC, it is clear that if a person ‘being the husband’ or ‘the relative of the husband’ of a woman subjects her to cruelty, he can be held guilty of offence under the said section. The relevant expressions used in the section referring to the accused are, ‘being the husband’ and ‘the relative of the husband’. ‘Being the husband’ would ordinarily mean, ‘in his capacity as the husband’, or ‘on account o