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2005 (3) KLT  468

Hon'ble Mrs.Justice K. Hema

Abdul Sathar v. Aneesa

Crl. M.C. No.8601 of 2002. 

Decided on 12th January, 2005.

Penal Code 1860, S.498A -- If a former/divorcee husband had subjected a divorced wife to cruelty in his status as her husband during subsistence of their marriage, he will be liable for offence under S.498A.

What is relevant to establish offence under S.498A IPC is the marital status of the accused at the time of commission of offence.  The expression, 'being the husband; used in the section relates to the marital status of the accused at the time of commission of the offence and not such status at the time of filing of complaint.  Emphasis is seen given in S.498A IPC to the marital status of the accused at the time of commission of offence and not to what it was at the time of filing the complaint.  In such circumstances, offence under S.498A IPC will lie against a person irrespective of whether he was the husband or former husband of aThis is a way, gives an indication that there is no bar for a 'woman' -- whether she be the wife or the divorced wife-- to proceed against the accused/husband for offence under S.498A IPC if she is aggrieved by commission of such offence.  But in such case, it has to be established that the offence was committed by the accused while marriage between the accused and victim was in existence.  It is not necessary that the victim should continue to be 'the wife' of the accused at the time of filing of complaint also. The expression used in S.198A of the Code, referring to the victim is 'the person aggrieved by the offence' and not wife.  Thus, in S.198A of the Code also, just as in S.498A IPC, the expression 'wife' is strikingly kept away by the legislature.  The use of

the word 'wife' appears to be deliberately avoided in this section also.  Though 'the person aggrieved by the offence' under S.498A IPC is normally the 'wife', the expression used in S.198A of the Code referring to such victim is not 'wife' but it is, 'the person aggrieved by the offence'.  This also suggests that there is no bar for the divorced wife from proceeding against the accused for the offence committed by him during subsistence of marriage between them. (paras. 7, 8 & 10)

 woman at the time of filing of complaint.  If a former husband had committed the offence in his capacity as the husband during subsistence of his marriage with the victim, he can be proceeded against for offence

 under S.498A IPC. A reading of S.498A IPC further reveals that the expression used in S.498A IPC to denote 'the person aggrieved by the offence' is significantly, 'woman' and not 'wife'. 

Penal Code 1860, S.498A -- A former husband cannot be held liable under S.498A for alleged act of 'cruelty' committed by him on his divorced wife, after divorce.

As per the allegations in the complaint, petitioner who is the former/divorcee husband of the divorced woman continued to inflict 'cruelty' on her even after divorce.  But, going by the language of S.498 IPC, he cannot be held guilty of offence under S.498A IPC because, as per the said Section, the act committed by a person will be an offence only if he has done it in his marital status as 'the husband'.  After divorce, he ceases to be 'the husband' and hence such acts committed by him after divorce will not constitute offence under S.498A IPC.  If such acts make out any other offence, he can be proceeded against for such other offence or offences. (para. 13)

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There is a judgement on same ground from Apex Court