M ABDUL SATHAR Vs. ANEESA

JUDGEMENT

(1.) Can a former/divorcee husband be held liable for offence under Section 498A of Indian Penal Code (IPC, for short) Is existence of marriage between accused and the victim, a requirement to constitute offence under Section 498A IPC Can the Court take cognizance of offence under Section 498A IPC on the basis of a complaint filed by a divorced woman These are precisely, the questions to be answered in this case.

(2.) A private complaint was filed by a divorced wife against her former husband and his relatives before a Magistrate of First Class. It was alleged in the complaint that petitioner subjected the complainant/first respondent to cruelty during subsistence of their marriage and also after the divorce. Magistrate forwarded the complaint to police under Section 156(3) of Code of Criminal Procedure for investigation and a charge sheet was filed against the accused under Section 498A and 34 of IPC. Petitioner is the first accused in the case. He seeks to quash the complaint and the proceedings initiated against him.

(3.) Learned counsel appearing for petitioner contended that petitioner cannot be prosecuted for offence under Section 498A IPC since admittedly, he is not 'the husband' but only the 'former husband' of the complainant. According to him, offence under Section 498A IPC will lie only against 'the husband' and 'the relatives of the husband'. But, on account of the divorce petitioner ceased to be the 'husband' and no marital relationship exists between complainant and petitioner. Section 498A IPC deals with a matrimonial offence and existence of a matrimonial relationship between the accused and the victim is a pre-requisite to constitute offence under the said section. But, petitioner not 'being the husband' of the complainant, he cannot be proceeded against under Section 498A IPC. These in short, are the arguments.