Wife from void marriage can file case for cruelty under Section 498A: Jammu and Kashmir High Court

A man and his relatives can be prosecuted for the offence of cruelty under Section 498A of Ranbir Penal Code (RPC) even if the marriage entered into by him with the complainant woman was void, the Jammu & Kashmir High Court ruled (Karnail Chand and others V/s State of J&K and another). .The High Court held that when a person enters into a marital arrangement with a woman, he is covered by the definition of 'Husband' contained in Section 498A RPC irrespective of the legitimacy of the marriage.A single-judge Bench of Justice Sanjay Dhar, therefore, dismissed a petition challenging a First Information Report (FIR) lodged for the offence of cruelty under Section 498A and directed police to investigate matter. The Bench also lifted the interim stay on probe. .By way of background, the respondent woman had presented a complaint before the Udhampur police station stating that she had entered into wedlock that about two years ago with one Kuldeep Kumar and a son was also born out of the wedlock.It was alleged by her in the complaint that her husband and his relatives used to harass her and subject her to cruelty and that she was beaten up and thrown out of her matrimonial home. It was also alleged that the husband, who is working in the Army, was not paying any maintenance to her.The petitioners, who are parents, wife and another woman claiming to be the legally wedded wife, moved the High Court challenging the FIR..They submitted that since the accused Kuldeep Kumar was already married to another woman, there was no scope for him to get married a second time during the lifetime of his first wife.It was, therefore, the case of the petitioners that since the respondent/complainant is not the legally wedded wife of accused Kuldeep Kumar, as such, offence under Section 498A cannot be made out against the petitioners..The petitioners placed on record documents in support of this assertion and, in fact, the investigating agency had also found that accused Kuldeep Kumar was already married and that the first marriage was subsisting at the time when he entered into wedlock with respondent/complainant.It was, therefore, contended by the petitioner that as per Hindu law, a person is prohibited from solemnizing second marriage during the lifetime of his first wife and in case he does so, the second marriage would be void ab initio..Thus, even if the contention of respondent/complainant that she had entered into wedlock with Kuldeep Kumar was taken to be correct, neither Kuldeep Kumar, nor his relatives can be said to have committed offence under Section 498A as the accused Kuldeep Kumar cannot be considered the legally recognised husband of complainant, the petitioners argued.The Court, however, placed reliance on the judgment of the Supreme Court in A Subhash Babu v State of AP and another [(2011) 7 SCC 616] and held that when a person enters into a marriage arrangement with a woman, he is covered by the definition of 'Husband' as contained in Section 498A irrespective of the legality of marriage..Hence, even if the complainant is not the legally wedded wife of the accused Kuldeep Kumar, petitioners who happen to be the relatives of the accused as well as the accused can be prosecuted for an offence under Section 498A, the Court said. The Court, therefore, dismissed the petition with a direction to the police to investigate the matter. Interim order of stay of proceedings of the impugned FIR was also vacated..[Read judgment]