The legal sanctity of the second marriage and its implications on the applicability of Section 498A IPC and/or under Dowry Prohibition Act.

JUDGMENT :

Heard learned counsel for the parties.

2. Pursuant to the order dated 25.04.2022 notices were issued to the petitioners. A service report has been received indicating therein that petitioner nos. 1, 2 and 5 have died and the notices have been served upon rest of the surviving petitioners.

3. In view of the aforesaid fact, the instant application is dismissed as abated against petitioner nos. 1, 2 and 5.

4. This revision application is directed against the judgment dated 20.05.2006 passed by learned Additional Sessions Judge, FTC-VII, Hazaribagh in Cr. Appeal No. 117 of 2005; whereby the judgment of conviction and order of sentence dated 23.07.2005 passed by learned C.J.M., Hazaribagh, in T.R. No. 236/2005 (G.R. No. 904 of 2001); whereby the petitioners have been convicted for the offence under Section 498 A I.P.C. and Section 4 of the Dowry Prohibition Act, and sentenced to undergo R.I. for a period of two years and to undergo R.I. for one year, respectively and ordered the sentences to run concurrently; has been affirmed.

5. The case of the prosecution in short as per complaint filed by the complainant is that she was married to petitioner no.1 in the year 1997 and out of the said wedlock she gave birth to a female child. It is alleged that after 6 months of her marriage the complainant learnt that petitioner no.1 was earlier married to another lady but the same fact was suppressed by him. It is also alleged that after one year of marriage the petitioner started torturing the complainant. It is stated that a Panchaity was also held on 20.10.2000 before whom the petitioner no.1 undertook to maintain the complainant but after few days the petitioner again started torturing her and also stopped providing food to her and her child. It is further alleged that petitioner threatened her and demanded a sum of Rs. 50,000/- from her.

6. Mr. Sidhartha Roy, learned counsel for the petitioner submits that this is a classic case in which the second wife has been held to be real wife and her allegation under Section 498 A IPC has been accepted by the learned trial Court and even the appellate court has failed to consider that the second wife is having no legal rights, whatsoever, even filing of criminal case.

7. Learned counsel further draws attention of this Court towards paragraph 11 of the appellate court judgment and submits that the learned appellate Court has committed an error in convicting these petitioners for the offence under Section 498 A of the I.P.C. and Section 4 of Dowry Prohibition Act, in spite of the fact that the court itself admitted that the complainant/informant was a second wife, as such, the impugned judgment is fit to be rejected.

8. Ms. Sweta Singh, learned Addl. P.P. admits the correct position of law.

9. Having heard learned counsel for the parties and after going through the judgments passed by the courts below it transpires from paragraph 11 of the appellate court judgment that it has misdirected itself due to the fact that since the complainant/informant was getting maintenance, as such conviction under Section 498A IPC is maintainable.

10. For brevity paragraph 11 of the judgment passed by the appellate court is quoted hereinbelow:-

“11. From Ext.1 certified copy of Misc. Case No. 172 of 2000 of learned Principle Judge, Hazaribagh it appears that the order clearly speaks that the complainant is the wife of accused Lilu Mahto, although it was held that she was second one. As per the order passed in Misc. Case No.172 of 2000 accused Lilu Mahto was directed to give maintenance of Rs.1550/- per month to his wife Geeta Devi, hence Ext.1 shows that the complainant is the wife of the accused Lilu Mahto. P.Ws. 1 and P.W.2 herself have fully supported the case of prosecution that the accused persons-appellant nos. 1 to 5 used to assault and torture the informant and they also told her to bring Rs.50,000/- as dowry, such type of offence happens inside the house of the accused hence in such type of occurrence it is not