Valid marriage is necessary for attracting offence u/s 498a

wow

hahahaha

my void wife has also filed 498a !!

marriage already declared null & void because at the time of our marriage, her first marriage was subsisting !!

here are more cases by bombay & Dehli HC

i have few other judgements to this effect

i will post soon.

https://indiankanoon.org/search/?formInput=Shivcharan%20lal%20verma&pagenum=0

HIGH COURT OF JUDICATURE AT ALLAHABAD 

?Court No. - 54 
Case :- APPLICATION U/S 482 No. - 30812 of 2012 
Petitioner :- Smt. Nirmala Shukla And Others 
Respondent :- State Of U.P. And Another 
Petitioner Counsel :- Raj Kumar Khanna 
Respondent Counsel :- Govt.Advocate 

Hon'ble Bala Krishna Narayana,J. 
Heard learned counsel for the applicants and learned A.G.A. 
The applicants through this application under Section 482 Cr.P.C. have invoked the inherent jurisdiction of this Court with a prayer to quash the order dated 21.7.2012 passed by the learned A.C.J.M., Court No. 8, Allahabad by which he has rejected the discharge application of the applicants filed by them in Case No. 1048 of 2006, State Vs. Ram Chandra Shukla and others, under Sections 494, 495, 342, 498-A, 506 I.P.C. & 3/4 D.P. Act, Police Station Shivkuti, District Allahabad. 
Learned counsel for the applicants submit that the daughter of opposite party no. 2 admittedly is the second wife of the son of the applicant nos. 1 and 2. The alleged marriage was solemnized during the subsistence of valid marriage with another. The second marriage being null and void, the applicants cannot be prosecuted under Section 498A Cr.P.C. In support of his contention, the learned counsel for the applicant has placed reliance upon the Judgment in the case of Shivcharan Lal Verma Vs. State of M.P. reported in 2002(44) ACC 857. 
Per contra, learned A.G.A. submitted that charge is yet to be framed and no interference with the impugned order is required at this stage as the applicants will have full opportunity to demonstrate before the trial court that charge under Section 498A is not liable to be framed at the stage of framing of charge. Submission made by the learned A.G.A. has force. 
Without interfering with the impugned order at this stage, the application is disposed of with a direction to the concerned court that if at the time of framing of charge, the applicants move an objection before the trial court stating therein that charge under Section 498A is not liable to be fraimed against them in view of the law laid down in Shivcharan Lal Verma Vs. State of M.P. reported in 2002(44) ACC 857, the trial court shall consider the said objection of the applicant before proceeding to frame charge against them. 
Accordingly, the application is disposed of. 
Order Date :- 19.9.2012 
Ram Murti 

https://cacharjudiciary.gov.in/Images/december/Criminal%20Revision%20118%20OF%202012.pdf

IN THE COURT OF THE SESSIONS JUDGE, CACHAR, SILCHAR.

(Criminal Revisional Jurisdiction)

Crl. Revision No.118 of 2012

Present :- Shri B. Debnath, LL.M., AJS,

Sessions Judge,

Cachar, Silchar.

1. Sri Santanu Chakranorty.

2. Smti. Anuparna Chakraborty. .......... Petitioners.

- Versus -

The State of Assam. .......... Respondent.

Appearance :-

For the revisionist :- Smti. B. Acharyya, learned advocate.

For the respondent :- Sri Sibdas Dutta, learned P.P.

Argument heard on :- 29.11.2012.

Judgment delivered on :- 13.12.2012.

J U D G M E N T

1. This Revision is preferred by the accused persons of C.R. Case

No.118/2012 on being dissatisfied with the order dated 08.08.2012 because the

learned C.J.M., Cachar framed charge against them u/s.498(A)/34 I.P.C. in spite

of the complaint filed by 2nd wife of the Revisionist Santanu Chakraborty.

2. L.C.R. has been called for. Perused the L.C.R. and heard both sides'

counsels.

3. One Supriya Das (Chakraborty) filed a written complaint against

Revisionist Santanu Chakraborty and his first wife Anupama Chakraborty

alleging inter-alia that on 15.12.2008 she was married with Revisionist Santanu

Chakraborty as per registered marriage procedure and since then she was

staying with the Revisionist Santanu Chakraborty in a rented house at College

Road, Silchar. But, after few days of marriage she was subjected to the cruelty

of dowry and terminated her pregnancy on 07.06.2007 against her will.

Thereafter, she was brought to Malugram on 27.02.2010 and started physical

torture with the instigation and co-operation of Respondent No.2.

4. On receipt of the written complaint it was forwarded to O/C, Silchar

Police Station to register a case, investigate and to submit report in F.F.

Accordingly, O/C, Silchar Police Station registered Silchar P.S. Case

No.1062/2010 u/s.498(A)/417/34 I.P.C. read with Section 3/4 D.P. Act. After

investigation charge-sheet submitted against the Revisionists. They have been

charge-sheeted u/s.498(A) I.P.C.

5. Anyhow, while charge framed u/s.498(A) I.P.C. the Court below relied

on the case of Supreme Court in Reema Agarwala Vs. Anupam & Ors.,

2004(3) SCC 199 and opined as follows :-

“In view of the above law laid down by the Hon'ble Apex Court, it

is disclosed that validity of a marriage will not act as a bar for a

woman to institute a case u/s.498(A) I.P.C.

6. I have gone through the aforesaid case and also heard the learned

advocate of the Revisionists. The learned advocate of the Revisionists argued

that as per rule of precedent that if two contradictory decisions of Supreme

Court is available in the same issue, the decision of larger Bench will be

prevailed. With force of said submission she relied on the decision of Supreme

Court in Shivcharan Lal Varma and another Vs. State of Madhya Pradesh

vide 1 (2007) D.M.C. 120 S.C. or J.T. 2002 (2) S.C. 641.

7. She stated that as per decision of Supreme Court in aforesaid case a

second marriage during life time of first marriage is void, ab-initio, for which

there is no cruelty to the complainant (second wife) as per explanation of

Section 498(A) I.P.C.

8. I have gone through the aforesaid judgment. Mohini was 2nd wife of

Shivcharan. Kalindi was 1st wife. Mohini committed suicide due to cruelty of

her husband and 1st wife. Charge framed u/s.498(A)/306 I.P.C. The Sessions

Judge convicted both husband and 1st wife u/s.498(A)/306 I.P.C. On Appeal

High Court affirmed the conviction and sentence. Then by way of special leave

petition, the matter brought to the Supreme Court. The Supreme Court by 3

(three) Judges Bench set aside conviction u/s.498(A) I.P.C. with the reasoning

that the 2nd marriage is null and void, but upheld the conviction u/s.306 I.P.C.

9. As the judgment in Reema Agarwal case (Supra) decided by 2 (two)

Judges Bench and Shivcharan's case (Supra) decided by 3 (three) Judges Bench,

the decision of larger Bench is prevailed.

10. Therefore, at present the law is available in our hand that in order to

take cognizance of offence u/s.498(A) I.P.C. the subject of cruelty must be wife

under valid marriage.

11. Hence, I find infirmity to the impugned order of framing charge

u/s.498(A) I.P.C. So, the impugned order is set aside and Revisionists are

discharged of charge u/s.498(A) I.P.C. But, at the same time it is revealed from

the record that some other allegations are levelled against the Revisionist

Santanu Chakraborty for physical assault as well as terminating pregnancy

without the will of the complainant and instigation of commission of these

offence against Anupama Chakraborty. But, nothing discussed in the impugned

order regarding those aspect by the Court below as to whether the prosecution

made out the case for trial.

12. Of course, in the charge-sheet only Section 498(A) I.P.C. has been

shown against the Revisionists, but the Court should not depend on the opinion

of the investigating officer only and if on perusal of record find material for

involvement of commission of offence other than offence u/s.498(A) I.P.C. the

Court is not restricted to frame charge on those appropriate Sections of offence.

13. In this aspect I am referring the case law of P. Vijayam Vs. State of

Kerala and another, 2010 Cri.L.J. 1427.

14. In that case the Supreme Court observed that Judge is not a mere post

office to frame the charge at the behest of prosecution, but he is to exercise his

Judicial mind to facts of each case in order to determine whether a case for trial

has been made out by prosecution.

15. With the above observation, the case is remanded and directed to pass

a fresh order after giving reasonable opportunity for hearing to both the

prosecution and defence.

16. Both the parties are asked to appear before the Court below on

28.12.2012 for further instruction.

17. Send back the L.C.R. along with copy of this judgment for

information and necessary action.

18. Given under my hand and seal of this Court on this 13th day of

December, 2012.

(B. DEBNATH)

Sessions Judge,

Cachar, Silchar.

Dictated & corrected by me.

(B. DEBNATH)

Sessions Judge,

Cachar, Silchar.

Typed by Sujit Kr. Das.

Crl. Revision No.118/12.

13.12.12.

Judgment is prepared separately and kept in

the C.R.

The impugned order of framing charge

u/s.498(A) I.P.C. is set aside and Revisionists are

discharged of charge u/s.498(A) I.P.C. But, at the same

time it is revealed from the record that some other

allegations are levelled against the Revisionist Santanu

Chakraborty for physical assault as well as terminating

pregnancy without the will of the complainant and

instigation of commission of these against Anupama

Chakraborty.

The case is remanded and directed to pass a

fresh order after giving reasonable opportunity for

hearing to both the prosecution and defence.

Send back the L.C.R. along with copy of this

judgment for information and necessary action.

(B. DEBNATH)

Sessions Judge,

Cachar, Silchar.