A valid marital relationship is essential for prosecution under Section 498A of IPC; without a legal marriage, the accused cannot be considered a husband.

ORDER

Dated this the 21^st day of October, 2024 This Criminal Miscellaneous Case has been filed under Section 482 of the Code of Criminal Procedure by the 1^st accused in C.C.No.463/2011 on the files of the Judicial First Class Magistrate Court-II, Kollam. The plea raised is to quash the said case.

2. In this matter, the prosecution alleges commission of offence punishable under Section 498A read with 34 of the Indian Penal Code by the accused on the allegation that the accused subjected the defacto complainant, who is the wife of the petitioner/1^st accused, to cruelty during their stay at the matrimonial home after the marriage in between them, solemnised on 02.11.2009.

3. The learned Senior Counsel appearing for the petitioner/1^st accused zealously pointed out that offence under Section 498A would not attract in the instant case and it is argued that, in order to attract offence under , it is necessary that the act of cruelty shall be done by the husband or relatives of the husband. It is also argued that 'husband' means the partner of a woman engaged in a legal marriage. According to the learned counsel for the petitioner, in the instant case, the marriage between the defacto complainant and the petitioner has been declared as null and void by the Family Court. Therefore, there is no legal marriage in the eye of law to place the 1^st petitioner as the husband as defined under , at any point of time during the period of occurrence or otherwise. Therefore, quashment is liable to succeed.

4. The learned Public Prosecutor though pointed out the allegations, he also conceded Annexure A order in O.P. ( HMA ) No.477/2011 dated 23.03.2013, whereby the Family Court declared the marriage between the petitioner and defacto complainant dated 02.09.2009, as null and void. 5. While addressing the contention raised by the learned counsel for the petitioner, reference to Annexure A order of the Family Court is necessary. Annexure A order stems from a petition filed by the petitioner herein under Section 7 of the Family Courts Act to declare the marriage between the petitioner and the defacto complainant as null and void. The main contention raised is that the marriage between the petitioner and the defacto complainant was solemnised on 02.11.2009, while the first marriage between the defacto complainant and one Simpson had been subsisting. Going by the order, while granting the decree of nullity of marriage, the learned Family Court Judge found that the marriage between the 1^st petitioner and the defacto complainant was solemnised during the subsistence of marriage between the defacto complainant and Simpson, since the same was not dissolved. It was also observed that as per Section 11 of the Hindu Marriage Act, any marriage solemnised after the commencement of the Hindu Marriage Act shall be null and void and may be so declared by a decree of nullity if it contravenes any one of the conditions specified in clauses (i), (iv) and (v) of section 5.

6. As per Section 5(i) of the Hindu Marriage Act, one of the conditions of marriage is that neither party has a spouse living at the time of the marriage. In this matter, the Family Court found that prior to the marriage between the petitioner and the defacto complainant, the defacto complainant was married to one Simpson and the said marriage was subsisting at the time of the present marriage and thereby the marriage between the petitioner and the defacto complainant was declared as null and void.

7. Since the marriage has been declared as null and void and failure to satisfy the conditions of the marriage, then there is no legal marriage in the eye of law.

8. In the decision reported in Aswin V. Nair (Dr.) V. State of Kerala [2024 KHC Online 611], this Court considered an issue in paragraph Nos. 4 to 9 held as under:

“4. While canvasing quashment of the proceedings, the learned counsel for the petitioner argued that the relationship between the accused and the defacto complainant was a live-in re