Wife can file complaint under Section 498A IPC for cruelty even if she has consented to husband's second marriage: Patna High Court

The Patna High Court last week held that even if a wife grants consent to her husband's second marriage, she can still file a complaint against him under Section 498A of the Indian Penal Code (IPC) for cruelty [Arun Kumar Singh vs Nirmala Devi]..A division bench of Justices Pavankumar Bajanthri and Jitendra Kumar refused to accept the argument of the appellant-husband that he had performed second marriage in 2004 after taking prior consent of his first wife whom he had married in May 1978.The bench noted that the second marriage failed in 2005 and subsequently in 2010, the first wife lodged a case under Section 498A against the husband for causing cruelty to her.It ruled that though the husband entered into second marriage allegedly with the consent of his first wife, merely entering into such a second marriage itself would amount to cruelty to first wife."As a common knowledge, such second marriage is not tolerated by any wife and that is why entering into second marriage itself amounts to cruelty to the first wife giving her reason to live separately and giving cause of action to file complaint cases under Section 498A," the Court held.The bench further said that merely lodging criminal cases under Section 498A by the wife cannot be construed as cruelty to the husband..The Court was hearing an appeal filed by the husband challenging a July 2017 order of a family court at Sheikhpura dismissing his plea for divorce.As per the husband's plea, he had married with his first wife in 1978. However, since her behaviour towards him changed following the birth of his daughter, the couple started living separately. In 2004, he got married for the second time and also took the prior consent of his first wife.Subsequently in 2010, the first wife initiated legal action by filing a complaint under Section 498A and Sections 3 and 4 of the Dowry Prohibition Act. She also lodged a second criminal case against him under Section 498A.The husband, therefore, applied for anticipatory bail in both the cases. The High Court granted him relief but with a directive to pay ₹5,000 per month to his first wife as a maintenance. An additional amount of ₹5 lakh was ordered to be paid towards the marriage of his daughter.The daughter's marriage took place in 2013 after which he requested his wife to file her consent for mutual divorce. The same was, however, rejected.He then filed for divorce on grounds of cruelty under Section 13 of the Hindu Marriage Act, 1955. He alleged that the cases filed by his wife were false and intended to harass him.The family court rejected the plea prompting the present appeal before the High Court.The High Court ruled that the husband failed to prove that the two cases filed by his first wife against him under Section 498A were false and fabricated and they were lodged in order to harass him."As such, we find that there is no merit in the present appeal warranting any interference in the impugned judgment. The Family Court has rightly dismissed the matrimonial case of the husband seeking divorce. The present appeal is dismissed," the bench said.With these observations, it dismissed the appeal filed by the husband..Advocate Ashok Kumar Garg appeared for the Husband.Advocate Shree Kant Pandey represented the Wife..[Read Judgment]