The acceptance of a spouse in a marriage, despite prior marital status, can establish the relationship necessary for criminal charges under Section 498A IPC.

ORDER :

Mr. Rajendra Prakash Soni, J. - The petitioner has invoked the inherent powers of this Court under Section 482 of the Code of Criminal Procedure for quashment of criminal proceedings pending in the Court of Additional Chief Judicial Magistrate No.1, Balotra, District Barmer being Criminal Regular Case No. 277/2022 and the charge sheet in connection with FIR No. 585/2021 of PS Balotra, District Barmer for the offences punishable under Sections 498A and 323 of the Indian Penal Code wherein, after filing of the charge sheet, the cognizance of the said offences has been taken against the petitioner.

2. As per facts of the case, a report was lodged before Balotra Police by the complainant-respondent No. 2 Anuradha to the effect that family of complainant and petitioner belong to the same caste and there was an old acquaintance between them, therefore, the father of the petitioner Mr. Bhagirath Agarwal made a proposal to the parents of the complainant for marriage of his son Prakash Agarwal with the complainant Anuradha. In the FIR, complainant admitted that she was earlier married but had socially divorced and severed her relationship with husband and began to live with her parents. With the consent of Prakash Agarwal, complainant Anuradha and their family members, marriage of Anuradha and Prakash Agarwal was solemnized on 09.12.2020 according to the Hindu rites and rituals in the presence of the Priest as well as family members of both the parties. Petitioner accepted the complainant as his wedded wife.

3. It was also alleged that the parents of respondent No.2 at the time of marriage had given some jewellery and Rs. 1.5 lacs cash along with other items to the petitioner. After few days of the marriage, the petitioner in league with his parents, started demanding Rs. 1.00 lac in cash and 5 tolas of gold as dowry and in this connection they started torturing her in various ways and due to such treatment meted out to her, she suffered both mentally and physically and finally she returned to her parents on 06.03.2021. She was also cautioned by her in-laws that she would not be accepted lest she brings the dowry in cash and kind.

4. On the basis of said FIR, a criminal case was registered and on completion of the investigation made by the Police, a charge-sheet was submitted by the Police alleging, inter alia, that in the investigation, it was established that the petitioner has committed the alleged offences.

5. Mr. Devendra Khatri, learned counsel appearing for the petitioner, at the outset, submitted that the complainant Anuradha was earlier married to one Anshul. Without obtaining a decree of divorce under the Hindu Marriage Act, she again solemnized marriage with the petitioner which cannot be said to be a valid marriage; that second marriage in the life-time of the first husband without obtaining a decree of divorce is a void marriage having no sanction of law, therefore, the petitioner cannot be deemed to be her husband in terms of Section 498A of the Indian Penal Code and, therefore, said offence is not attracted against the petitioner.

6. It is further argued that since the prosecution has failed to establish the relationship of husband and wife between the petitioner and the complainant Anuradha, the criminal prosecution of the petitioner cannot be sustained under the law.

7. On the other hand Ms. Anita, learned Public Prosecutor has seriously contested all the arguments raised on behalf of the petitioner. It is submitted that although the complainant Anuradha has admitted the fact of her earlier marriage in the complainant but besides it, the fact of divorce and socially severing of her relationship with her first husband was also made clear. Hence, the marriage between the petitioner and the complainant Anuradha was a valid marriage and they were legally wedded husband and wife therefore, all the ingredients of the offence punishable under Section 498A of the Indian Penal Code were attracted in the present case. Lastly, i