The Allahabad High Court has held that a complaint under Section 498-A (offence of cruelty by a husband or his relatives against his wife) of the IPC was not maintainable against a man at the instance of his ‘second wife’. However, in such cases, the Dowry Prohibition Act, 1961 was applicable if there was a demand for dowry, it observed.
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Justice Arun Kumar Singh Deshwal partly allowed a petition filed by one Akhilesh Keshari and three others. Keshari and his family members had challenged the entire proceeding of a charge sheet, as well as a summoning order, in connection with a case under sections 498-A, 323, 504 and 506 of the IPC and section 3/4 of the Dowry Prohibition Act.
Before the High Court, the applicants argued that the proceedings initiated against them were unlawful. They contended that the complainant, who identified herself as the wife of Keshari, was not his legally valid wife since Kesari had not obtained a divorce from his first wife. Hence, prosecution under Section 498-A IPC and ¾ of the DP Act against the husband was not maintainable at the instance of the woman claiming to be the petitioner’s second wife.
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On the other hand, the counsel appearing for the state argued strict interpretation regarding the validity of marriage should not be made and liberal consideration should be given to those persons who contracted for marriage and were cohabiting together.
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The court relied upon the Supreme Court’s judgment in the case of Shivcharan Lal Verma vs the State of MP wherein it was held that if the marriage itself was null and void, then prosecution under Section 498-A IPC against the husband was not maintainable at the instance of the alleged wife.
The court in its judgement dated March 28 said that a second marriage by a Hindu was null and void therefore, prosecution under Section 498-A of IPC is not maintainable. However, under Section 3/4 of the DP Act, prosecution is maintainable as the main ingredients of the section is giving, taking or demanding dowry by any person and dowry demanded before marriage is also punishable.
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