RAJINDER TIWARI Vs. STATE

JUDGEMENT

(1.) THESE two revision petitions are taken up together as they arise out of the same order on charge and charges framed by the learned Metropolitan Magistrate on 20.10.2006.

(2.) THE learned counsel appearing on behalf of the petitioners straightaway submitted that he is not pressing these petitions insofar as the charges under Sections 417/406/506/34 IPC and Section 4 of the Dowry Prohibition Act, 1961 are concerned. It is, therefore, clear that these petitions are being disposed of merely on the basis of arguments advanced in respect of the offences under Sections 493/495/496/498-A/34 IPC.

(3.) WITH regard to the offence under Section 498A IPC, it has been submitted by the learned counsel for the petitioners that Rajinder Tiwari (one of the petitioners) was not legally married with the complainant inasmuch as the marriage was a nullity on account of the pendency of divorce proceedings in respect of his first marriage. He submits that this is an admitted position as would be apparent from a reading of the order dated 20.10.2006 itself wherein it is recorded that the complainant's counsel had vehemently opposed the contention with regard to the charge under Section 498A IPC not being made out on the ground that "even though the marriage is not lawful but the accused cannot escape on this ground alone" and the said counsel placed reliance on the judgment of the Supreme Court in the case of Reema Aggarwal v. Anupam, 2004(1) RCR(Crl.) 776 (SC) : 2004(2) Apex Criminal 375 : 2004(1) JCC 209 : (2004)3 SCC 199. So, the issue here is whether Rajinder Tiwari, without being a "husband" to the complainant, could be charged of an offence under Section 498A IPC. An identical issue has arisen in the case of Mohit Gupta and Ors v. State of Government of NCT of Delhi and Anr., 2006(3) JCC 1923 wherein the decision of the Supreme Court in the case of Reema Aggarwal (supra) was considered. However, this court held that the Larger Bench decision of the Supreme Court in Shivcharan Lal Verma v. State of M.P., 2002(2) Crimes 177 (SC) would be applicable and, as per that decision, unless the petitioner fell within the definition of "husband" on the basis of a valid marriage, he could not be prosecuted under Section 498A IPC and the same would be the case for his relatives. Therefore, applying the ratio of Mohit Gupta (supra), which, in turn, applied the binding ratio of Shivcharan Lal Verma (supra), it is abundantly clear that a charge under Section 498A IPC cannot be framed in this case against any of the petitioners.