The court upheld that prima facie evidence of cruelty and misappropriation exists, warranting trial despite questions regarding the legality of the marriage.

ORDER :

(A. BADHARUDEEN, J.)

Crl.M.C.No.3351/2022 has been filed underSection 482 of the Code of Criminal Procedure and the prayer is as under;

to quash Annexure A1 Final Report in Crl.M.C.No.175/2019 of Chittarikkal Police Station, in C.C.No.912/2019 before the Judicial First Class Magistrate Court-II, Hosdurg.

2. The petitioners herein are accused Nos.1 to 3 in the above case.

3. Heard the learned counsel for the petitioners and the learned Public Prosecutor in detail. No representation for the 2 nd respondent.

4. In this matter, prosecution alleges commission of offences punishable under Section 498A read with Section 34 of the Indian Penal Code (for short IPC hereinafter), by accused Nos.1 to 3.

5. The specific allegation of the prosecution is that the defacto complainant herein, who got married 18 years before and had two male children therein, started to reside separately for about 15 years. While so, the defacto complainant opted doing the job of home nurse for her livelihood. During this period, the 1 st accused, who was doing the job of painting, made acquaintance with her. Thereafter, the defacto complainant and the 1 st accused married at Shiva Temple near Railway Station, Mangalapuram on 30 th December, 2013. The mother and the sister of the 1 st accused, mother's sister and her husband, and friends of the 1 st accused also participated in the marriage. Thereafter, they had meals from a hotel and started to reside at the residence of the 1 st accused in Kavunthala for a week. Thereafter, she got engaged in her job in Ernakulam and she used to reach and reside at the house of the accused, but her residence at the matrimonial home was not acceptable to accused Nos.2 and 3. When she reached back to the matrimonial home after one month, then the mother and sister (accused Nos.2 and 3) poured kerosene on her head in the absence of the 1 st accused. According to the defacto complainant, she spent money for the purpose of house construction of the 1 st accused and also for getting electric connection to the house. The further allegation is that during 2015, the 1 st accused purchased a motor bike and in 2016, he purchased an autorickshaw using the gold and money belonged to the defacto complainant. She also spent expenses for the marriage, etc. According to the defacto complainant, while she was pregnant during 2016, accusedNos.1 to 3 physically assaulted her and thereafter, there was abortion. The further allegation is that accused persons misappropriated five sovereigns of gold ornaments and Rs.7 lakh belonging to the defacto complainant. Thereafter, they restrained the entry of the defacto complainant at the matrimonial home and thereby, she was physically and mentally harassed, and she was forced to get an order of injunction against them.

6. While seeking quashment of the proceedings, the learned counsel for the petitioners argued that in the instant case, there is no legal marriage and as per the statement given by the defacto complainant itself, she admitted that she was married 18 years before and had two male children. Since there is no legal marriage, the allegations of cruelty and harassment to attract offence under Section 498A of IPC are not made out. Therefore, the entire proceedings would require quashment.

7. According to the learned Public Prosecutor, even though the the defacto complainant admitted her first marriage before 18 years, the defacto complainant's statement is to the effect that the said marriage was separated 15 years before. Therefore, the marriage between the defacto complainant and the 1 st accused solemnised at Shiva Temple on 30.12.2023 is having the characteristics of a legal marriage to attract offence under Section 498A of IPC. According to the learned Public Prosecutor, even otherwise the same is a matter of evidence. Therefore, quashment sought for cannot be considered in a case where the allegations of cruelty and harassment are discernible from the prosecution records, prima facie .

8. In