no offence can be made out against accused inasmuch as the petitioner/A.1 has already pronounced Talaq against complainant on 19.05.2009 and deposited Rs.79,800/- towards Mehar and Iddat for the period of three months and published the factum of divorce in Daily Urdu Newspaper Siasat on 14.06.2009 and said amount was received by the defacto complainant through her Advocate by addressing a letter dated 09.11.2013 and therefore, the complainant can no longer claim as the wife of A.1 and hence the criminal proceedings are not maintainable.= 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 section 498A of IPC. But, if the alleged act of cruelty is committed by a former husband on the divorced wife after divorce, no offence under section 498A IPC will lie against him. He can however be proceeded against for such act, if it constitutes any other offence. Therefore, the argument of accused in this regard cannot be countenanced.

THE HONBLE SRI JUSTICE U. DURGA PRASAD RAO          

Criminal Petition No.1036 of 2015

02-06-2015

Mohd. Rafiuddin Ahmed Rep. by its GPA Holder Syed Ismail and others.....
Petitioners

The State of Telangana  Through Public Prosecutor,High Court, Hyderabad and
another.. Respondents

Counsel for Petitioners   : Sri Sadu Rajeshwar Reddy

Counsel for Respondent No.1 : Asst. Public Prosecutor
Counsel for Respondent No.2 : Mirza Nisar Ahmed Baig Nizami

< Gist:
> Head Note:
? Cases referred:
1)  MANU/KE/0221/205 = 2005(1) KLJ 907  


THE HONBLE SRI JUSTICE U.DURGA PRASAD RAO          
Criminal Petition No.1036 of 2015
ORDER:
     In this petition filed under Section 482 Cr.P.C., petitioners/A.1 to A.3
seek to quash the proceedings in C.C.No.342 of 2010 on the file of XV
Additional Chief Metropolitan Magistrate, Nampally, Hyderabad.
2)      A1 is the husband of de facto complainant. A2 and A3 are parents of
A.1.
3)      The private complaint filed by de facto complainant on 13.07.2009
was forwarded by learned XIII Additional Chief Metropolitan Magistrate,
Hyderabad to the Women P.S Charminar South Zone, Hyderabad, which was    
registered as Crime No.172/2009 for the offences under Sec.498-A r/w 34
IPC and after investigation charge sheet was laid against A1 to A3 and the
learned XV Additional Chief Metropolitan Magistrate, Nampally, Hyderabad
took cognizance of the case and registered as C.C.No.342 of 2010.
4)      The prosecution case is that the marriage between A.1 and the defacto
complainant took place on 10.12.2004.  A.1 was doing Air Ticketing Job in
K.S.A (Kingdom Saudi Arabia).  The parents of complainant presented
Rs.1,00,000/- cash as dowry, 8 Tolas of Gold ornaments and huge Jahez
Articles including Electronic Gadgets at the time of marriage and the
Accused gave 15 Tolas of Gold ornaments to the complainant towards
Chadawa articles. The defacto complainant joined the society of her husband
and all the accused were residing jointly at Hyderabad. Within short time
after the marriage, all the accused started ill-treating her as they were not
satisfied with the dowry given by the parents of complainant.  On
20.02.2005, A.1 left to K.S.A in order to join his duty by leaving the
complainant at his residence with A.2 and A.3.  On 01.10.2005, the
complainant was blessed with a female child and the accused started abusing
and ill-treating her for giving birth to female child and demanded to deposit
Rs.1,00,000/- in the name of newly born baby. Accused demanded
Rs.1,00,000/- as additional dowry for arrangement of Visa to complainant
and accordingly, the parents of complainant paid Rs.1,00,000/- to A.2 and
A.3, upon which A.1 accommodated visa to complainant and her daughter
and both went to K.S.A on 11.08.2006 but the A.1 did not look after them
properly and did not provide minimum necessities and due to his negligence,
she became sick.  A.1 was having illegal contacts with other ladies at abroad
and when she objected the same, A.1 to A.3 abused her and threatened her
with dire consequences. In those circumstances, A.1 sent her to India on
16.03.2007 to live in her in-laws house.  Thereafter the complainant again
went to KSA in the month of May, 2007 and conceived pregnancy and came  
to India on 18.12.2007 and was again blessed with a female child on
17.01.2008 and on knowing it, A.1 to A.3 made her life miserable and
tortured her and instigated A.1 to give Divorce to her. At the intervention of
elders and expenses of her parents, the complainant again went to KSA with
her two daughters in May, 2008 but the accused did not change their attitude.
a)      Whileso, In November, 2008, Complainant, her children and A.1
returned to India and started living in her in-laws house and the accused
demanded additional dowry of Rs.1,00,000/- and forcibly snatched all her
gold ornaments and Chadawa Articles. Accused accommodated a separate    
house for complainant nearby their house and the complainant was blessed
with a male child in the month of March, 2009.  Accused used to visit her
house and they tried to kill her by opening the gas pipe in the kitchen but she
rescued herself by sensing foul smell of gas leakage. The parents of
complainant paid Rs.25,000/- to A.1 but he was not satisfied and demanded
remaining amount of Rs.75,000/- and harassed her physically and mentally
for additional dowry.  On 24.03.2009, A.2 and A.3 visited the house of
complainant and demanded additional dowry of Rs.75,000/- and drove her
out of the house with minor children and threatened her not to comeback
until their demand was fulfilled otherwise they would see the end of
complainant.  Hence the charge sheet.
5)      Heard both sides.
6 a)    Denying the material averments, learned counsel for petitioners/ A.1 to
A.3 firstly argued that A.1 was in abroad as on 13.12.2008 as can be seen
from the stamping on his passport and he has not come back to India as on
today but inspite of it, the defacto complainant filed a private complaint on
13.07.2009 with all false and frivolous allegations as if A.1 along with A.2
and A.3 subjected her to cruelty both in India and KSA and therefore, all the
allegations of harassment are baseless beside being false.
b)      Secondly, he argued that the prosecution case even if uncontroverted,
no offence can be made out against accused inasmuch as the petitioner/A.1
has already pronounced Talaq against complainant on 19.05.2009 and
deposited Rs.79,800/- towards Mehar and Iddat for the period of three
months and published the factum of divorce in Daily Urdu Newspaper Siasat
on 14.06.2009 and said amount was received by the defacto complainant
through her Advocate by addressing a letter dated 09.11.2013 and therefore,
the complainant can no longer claim as the wife of A.1 and hence the
criminal proceedings are not maintainable.
c)      Thirdly, with regard to the petitioners/A.2 and A.3, learned counsel
submitted that the allegations of harassment and cruelty levelled against them
are false to the core as they have nothing to do with the affairs of
complainant and A.1 because the defacto complainant lived in a rented
portion and the petitioners/A.2 and A.3 used to never interfere with her
affairs and hence the proceedings against all the accused will amount to
abuse of process of law and liable to be quashed.
7)      Per contra, learned counsel for R.2/complainant firstly argued that the
complainant suffered ill-treatment and harassment in the hands of all the
accused in such a way that A.1 ill-treated her both at Saudi Arabia and also in
India whenever he used to visit India and whereas A.2 and A.3 used to harass
her in India and all the accused subjected her to cruelty continuously for
different reasons such as she gave birth to two female children and thereby
demanding her parents to deposit amounts in the name of those children and
also by seeking additional dowry from time to time. A.1 is concerned, when
the complainant visited him at Saudi Arabia after successive deliveries, he
did not provide Visa to her with his money but insisted that her parents
should bear the expenditure and not only that he did not look after the needs
of his wife and newly born female child in a foreign country and further, he
developed illegal contacts with women at Saudi Arabia. Learned counsel
vehemently argued that the height of atrocious acts of accused was that
somewhere after the complainant gave birth to a male child in March, 2009,
all the accused tried to kill her by opening the gas pipe in kitchen but she
providentially escaped by sensing the smell of the gas.
a)      Opposing the argument of the 1st petitioner that after 13.12.2008, A.1
was in Saudi Arabia and did not return India till today and false allegations
are made against him, learned counsel argued that the A1 did not file full
book of the passport but conveniently filed copies of only some pages to suit
his case and therefore, his version cannot be believed.  He submitted that as
per the contention of A.1, he gave Talaq and obtained divorce against
complainant on 19.05.2009 at Hyderabad and if it is true, he must be in India
since sometime prior to that date and hence A.1 was very much in India and
harassed her along with his parents. He submitted that the divorce intimation
was made to the complainant through lawyer notice dated 06.11.2009 and by
that time the complainant already filed the complaint under Sec.498A IPC on
13.07.2009.  He thus argued that whether the accused have harassed the
complainant in India as well as in Saudi Arabia or whether the complainant
gave false complaint can be determined only after a full-fledged trial as the
charges were already framed and the matter is coming up for trial, this Court
at this stage, may not quash the proceedings.
b)      Nextly, he argued that even assuming that the complainant knew that
Talaq was pronounced by A.1 on 19.05.2009 and filed complaint on
13.07.2009, still her complaint will not become invalid under law because for
the acts of cruelty of the husband and his relations during the subsistence of
marriage, a wife is entitled to launch criminal prosecution even after her
divorce.
c)      Finally regarding A.2 and A.3, learned counsel argued that in the
charge sheet, the complainant has vividly explained the harassment meted out
by her in-laws and therefore, they too do not deserve quashment of
proceedings.  He thus prayed to dismiss the petition.
8)      Learned Assistant Public Prosecutor (A.P.P) adopted the above
arguments and prayed to dismiss the petition.
9)      In the light of above rival arguments, the point for determination is:
     Whether there are merits in this petition to allow?
10)     POINT: Admittedly, the marriage between A.1 and complainant took
place on 10.12.2004 at Hyderabad and she lodged the complaint under
Sec.498A IPC on 13.07.2009.  A close scrutiny of the allegations in the
complaint and charge-sheet would reveal that she gave a vivid narration of
the harassment and cruelty meted out by A.1 to A.3 from 2005 to 2009 till
filing of complaint.  The alleged atrocious acts spread-over a period of more
than four years and occurred both in Hyderabad as well as in Saudi Arabia.
A.1 was doing Air Ticketing job at Saudi Arabia by the time of marriage.
The main allegations are that A.1 to A.3 did not like complainant delivering
two female children and so they insisted her and her parents to deposit
Rs.1,00,000/- in the name of those children and their further acts of cruelty
were that they demanded additional dowry of Rs.1,00,000/-. Besides, after
delivering first female child on 01.10.2005 when complainant went to join
her husband at Saudi Arabia, he did not even obtain Visa for her and the
expenditure was to be met by her parents and finally when she joined A.1
with her baby on 11.08.2006, he did not care for them and looked after their
necessities. Further, the scathing allegation is that A.1 was having illicit
contacts in Saudi Arabia. When she revealed these facts to A.2 and A.3, they
supported their son and threatened her and so the complainant returned India
in May, 2007 and on 18.12.2007 she gave birth to a second daughter and her
woes further intensified. A.2 and A.3 started instigating A.1 to give divorce
to complainant and with great persuasion and advice of elders, the
complainant and her two children were taken to Saudi Arabia in May, 2008.
The further allegations were that in or around November, 2008 A.1 along
with his wife and children came back to India and they were living in a
separate rented house. At that time also A.1 to A.3 demanded additional
dowry of Rs.1,00,000/- and A.1 bet her mercilessly and all the accused
snatched away her gold articles and Chadwa articles.  Subsequently she gave
birth to a male child in March, 2009 but there was no change in the attitude
of accused.  Another scaring allegation against accused is that they tried to
kill her by leaking the gas but she could providentially escape. This is the
gist
of the allegations and if uncontroverted, they provide a prima-facie material
to proceed against accused in trial.
a)      Be that it may, besides denying all the charge sheet allegations, the
accused claimed quashment firstly on the ground that since 30.12.2008 till
date, A.1 was at Saudi Arabia and did not return India and hence the question
of his harassing complainant during that relevant period and his parents
abetting him are all trash, which would show that complaint was lodged with
false averments.  In this regard, he relied upon the entry dated 13.12.2008 on
the copy of passport filed by him.  The said entry dated 13.12.2008 was
purported to be made on his passport at the R.G.I Airport, Hyderabad.  Per
contra, the contention of complainant is that copy of the full passport is not
filed by A.1 to show his subsequent visit to India and further, his claim that
he obtained divorce on 19.05.2009 at Hyderabad by pronouncing Talaq is
true, he must be in India during the relevant period also.  In my considered
view, whether A.1 has visited India subsequent to 13.12.2008 or not is not a
big issue, having regard to the nature of the allegations made in the charge
sheet against A.1 to A.3. As already stated supra, the allegations against all
the accused were spread over a period of four years from 2005 to 2009. The
allegations of atrocities were made against A.1 when he ill-treated his wife
when she visited twice to Saudi Arabia.  Whereas the allegations against A.2
and A.3 were made in respect of their atrocities at Hyderabad.  Ofcourse, few
allegations are made against A.1 to A.3 about their driving the complainant
away from their house after March, 2009.  A.1 claims that during that
relevant period he was not present in India.  However, divorce certificate
issued by Andhra Pradesh State Wakf Board and the legal notice dated
06.11.2009 issued by the Counsel of A.1 would show as if the accused
pronounced Talaq and obtained divorce on 19.05.2009.  If this is true, as
rightly argued by counsel for complainant, the A.1 must have been present in
India atleast sometime prior to 19.05.2009.  Therefore, his claim that after
13.12.2008 he was not in India to harass the complainant cannot be accepted.
Ofcourse, these aspects have to be vividly discussed after taking evidence
during trial.  For the present, the argument of accused cannot be accepted to
quash the proceedings.
11)     The second and most important ground propounded by the A.1 is that
he pronounced Talaq on 19.05.2009 and deposited Rs.79,800/- towards
Mehar and Iddat and published the factum of divorce in Daily Urdu
newspaper Siasat on 14.06.2009 and therefore, since after 19.05.2009 there
was no husband and wife relationship between the parties and suppressing all
these facts, the complainant filed the private complaint on 13.07.2009 which
is legally not maintainable. In a way, A.1 claims that in view of divorce dated
19.05.2009 the complainant cannot launch criminal prosecution against him
and other accused for their past alleged harassment even if it is true.
a)      I am afraid, this argument is quite preposterous.  It is not the trite law
that the divorced wife cannot launch prosecution against her husband and his
relations for the acts of harassment and legal cruelty meted out to her by them
the marriage was subsisting. It is profitable to extract Sec.498A IPC here:
Section 498A - Husband or relative of husband of a woman
subjecting her to cruelty
Whoever, being the husband or the relative of the husband of a
woman, subjects such woman to cruelty shall be punished with
imprisonment for a term which may extend to three years and shall
also be liable to fine.
Explanation.--For the purpose of this section, "cruelty" means--
(a) any wilful conduct which is of such a nature as is likely to drive
the woman to commit suicide or to cause grave injury or danger to
life, limb or health (whether mental or physical) of the woman; or
(b) harassment of the woman where such harassment is with a view to
coercing her or any person related to her to meet any unlawful
demand for any properly or valuable security or is on account of
failure by her or any person related to her to meet such demand.
12)     From the expression whoever being the husband or the relatives of the
husband of a woman, what we can infer is that the status of husband as on
the date of offence is relevant but not as on the date of filing complaint.
Precisely, as on the date of offence under Sec.498-A IPC, if the husband and
wife relationship existed between the parties, that would be suffice to attract
the offence.  Subsequent divorce between parties will not have any impact on
launching prosecution under this section.  Therefore, the expression being
the husband should be understood only with reference to the date of offence
as otherwise, the very object with which Section 498A was inducted into the
Code will be defeated. That a divorced wife cannot launch prosecution for the
atrocities committed by her husband during the subsistence of the marriage is
the interpretation, it will lead to anomalous and disastrous results to the
effect
that a husband can cause all sorts of harassment to her within the purview of
Sec.498A IPC and pronounce Talaq against her and still get over from the
prosecution. That is not the intendment of the framers of the law. Similar
view was expressed by a learned Judge of Kerala High Court in the case of
M. Abdul Sathar vs. Aneesa and others , wherein the Learned Judge while
answering the questionCan a former/divorced husband be held liable for
offence under Sec.498A IPC, has made the following observations:
Para 6: From the above discussion it is clear that what is relevant
to establish offence under section 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
section 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 section 498A IPC
will lie against a person irrespective of whether he was the husband
or former husband of a 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 section 498A IPC.
Para 7: A reading of section 498A IPC further reveals that the
expression used in section 498A IPC to denote 'the person aggrieved
by the offence' is significantly, 'woman' and not 'wife'. This in 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 section 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.
Para 13: I shall now sum up: 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 section 498A of IPC. But, if the alleged act of cruelty is
committed by a former husband on the divorced wife after divorce, no
offence under section 498A IPC will lie against him. He can however
be proceeded against for such act, if it constitutes any other offence.
        Therefore, the argument of accused in this regard cannot be
countenanced.
13)     So at the outset, none of the points raised by the petitioners/ accused
carry conviction to quash the proceedings. Hence, the Criminal Petition is
liable to be dismissed.
14)     In the result, this Criminal Petition is dismissed.  However, considering
that the petitioners/A.2 and A.3 are aged persons, their attendance before the
trial Court is dispensed with except on the occasions when the trial Court
specifically requires their presence.
        As a sequel, miscellaneous applications pending, if any, shall stand
closed.
__________________________  
U. DURGA PRASAD RAO, J    
Date: 02.06.2015

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