Kerala High Court
Sugandhi vs State Of Kerala on 10 October, 2018
Author: Sunil Thomas
Bench: Sunil Thomas
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE SUNIL THOMAS
TUESDAY ,THE 23RD DAY OF OCTOBER 2018 / 1ST KARTHIKA, 1940
Crl.MC.No. 3361 of 2018
(AGAINST THE ORDER/JUDGMENT IN SC 103/2014 of ASST.SESSIONS
COURT,NEYYATTINKARA . FIR NO.539/CR/TVPM/10 OF CBCID-HHW-1
THIRUVANANTHAPURAM
CRIME NO. 511/2010 OF KATTAKKADA POLICE STATION)
PETITIONER/2ND ACCUSED:
SUGANDHI,
AGED 70 YEARS, W/O. KARUNAKARA PANICKER, SUGANDHI
DARSANAM HOUSE, CHOONDUPALAKA, VEERANAKKAVU,
KATTAKKADA, THIRUVANANTHAPURAM - 695 572.
BY ADVS.
SRI.SHABU SREEDHARAN
SMT.NIDHI RAVINDRAN
SMT.RESHMA ABDUL RASHEED
SRI.D.THILAKAN
SRI.M.YOHANNAN
RESPONDENT/STATE 7 COMPLAINANT:
1 STATE OF KERALA,
REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF
KERALA, ERNAKULAM - 682 031.
2 AJAYAKUMAR
AGED 50 YEARS, S/O. SREEDHARAPANICKER, VATTAPPULLIL
HOUSE, VAVODU, VAZHICHAL, THIRUVANANTHAPURAM - 695 125.
OTHER PRESENT:
RAMESH CHAND PP
THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 10.10.2018, THE
Crl.M.C.No.3361/2018 2
COURT ON 23/10/2018 PASSED THE FOLLOWING:
O R D E R
The petitioner is facing trial as second accused in SC No.103/2014 of Asst. Sessions Court, Neyyattinkara, for offences punishable under sections 494, 498(A) and section 306 read with section 34 IPC. The first accused is her son.
2. According to the prosecution, the first accused married one Deepa on 25/4/2007, in accordance with religious rites. A child was born in the marriage. While they were living together along with the second accused, the accused harassed her demanding more dowry. It was alleged that, the gold ornaments of Deepa were sold and with sale proceeds a property was purchased and house constructed in the name of the second accused. It was also revealed that the first accused had earlier married a foreign national and later married CW8 on 9/9/2004. A child was born in that relation. Unable to face the extreme cruelty meted out at Deepa, she hanged to death the son and committed suicide by hanging. FIS was laid by the uncle of Deepa. Crime was registered and after investigation, final report was filed. Deepa is arrayed as 3rd accused for offence under section 302 IPC.
3. The petitioner has approached this court with a prayer to Crl.M.C.No.3361/2018 3 quash the proceeding on a ground that her prosecution is not sustainable. It was contended that, offences punishable under section 494 and section 498A cannot go together. A second marriage during the life time of the spouse was a void marriage as per section 494 IPC. It was contended that since the first accused is charged under section 494 IPC, the marriage of the first accused with Deepa was void and hence section 498A IPC will not be attracted. It was also contended that there was no allegation against the petitioner and even the alleged acts committed by the petitioner were not sufficient to constitute cruelty under section 498A IPC.
4. Heard the learned counsel for the petitioner and the learned Public Prosecutor.
5. To substantiate the contention of the petitioner that offence under section 494 IPC and Section 498A will not go together and that the marriage between the first accused and Deepa was void, the learned counsel for the petitioner relied on the decisions reported in Shivcharan Lal Verma v. State of M.P. (2002 (2) Crimes 177 (SC), Suvetha U v. State of Inspector of Police and Another (2009 KHC 680), Suprabha v. State of Kerala and Another (2013 (3) KHC 333) and Unnikrishnan v. State of Kerala (2017 (4) KHC 356). In Shivcharan case, the accused had married a woman during the subsistence of the first marriage. The woman later committed suicide. The Supreme Court held that the alleged marriage Crl.M.C.No.3361/2018 4 with the deceased was null and void. Consequently, conviction under section 498A was set aside. This principle was followed in other decisions holding that existence of a valid marriage is the sine quonon of a prosecution under section 498A.
6. However, in Subharao v. State of A.P.(2009 (2) KLT 531 (SC), Supreme Court took a different view and held that the expression husband would cover a person who enters into martial relationship and under the colour of such proclaimed or feigned status of husband and subjects the woman concerned to cruelty or coerce her in any manner or for any purposes enumerated in the relevant provisions of section 304B/408A whatever may be the legitimacy of marriage itself.
7. In the present case, prosecution asserts that the first accused had married Deepa in accordance with the religious rites. This is sought to be proved through CW15 and other witnesses. It is true that prosecution has a case that the first accused had married a Swedish woman. There is no material to prove it. He also allegedly married CW8. However, even according to CW8, there is no evidence to prove the marriage. Essentially whether the first accused had entered into a legal marriage and whether it was subsisting during the marriage with Deepa is a question of fact. At this stage, it cannot be held that the marriage with Deepa was void since it requires to be proved that first accused had legally married other woman. Crl.M.C.No.3361/2018 5
In the above circumstances, I am not inclined to accept the contentions of the learned counsel for the petitioner at this stage.
Crl.M.C.fails and is dismissed.
Sd/-
SUNIL THOMAS
dpk JUDGE
Crl.M.C.No.3361/2018 6
APPENDIX
PETITIONER'S/S EXHIBITS:
ANNEXURE 1 THE TRUE COPY OF THE FIR WITH THE FIS IN
CRIME NO. 511/2010 OF KATTAKKADA POLICE
STATION DATED 25.08.2010.
ANNEXURE 2 THE TRUE COPY OF THE CHARGE SHEET IN FIR
NO. 539/CR/TVPM/2010 OF CBCID-HHW1 DATED
24.07.2013.