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1. This revision petition has been filed against the order dated 8.2.2005 passed by the learned Additional Sessions Judge, Delhi whereby he thought it fit that additional charges be framed for the offences under Section 498-A/313/342 IPC against all the accused (except Vivek Gupta) in addition to the charge framed under Section 417 IPC against Mohit Gupta and his father and under Section 406 against Mohit Gupta and his mother. Being aggrieved by the additional charges framed against them, the accused have filed this revision petition. The order dated 8.2.2005, in turn, arose out of a revision petition filed by the complainant (Shalini) who was aggrieved by the order of the learned Metropolitan Magistrate dated 26.3.2004 by virtue of which, charges only under Section 417 IPC against Mohit Gupta and his father and under Section 406 IPC against Mohit Gupta and his mother, were framed. The learned Metropolitan Magistrate did not frame any charge under Section 498-A IPC. Nor did he frame any charge under Section 313 and 342 IPC against any of the accused.

6. The learned Counsel for the state was also heard and he supported the impugned order. By way of supplement he submitted that at the relevant time the offence under Section 406 was compoundable only up to Rs 250. The settlement of 9.10.2003, is therefore of no consequence inasmuch as the amount involved is far in excess of Rs 250/-. Thus, he submitted, the argument of Section 406 not being made out in view of the settlement of 9.10.2003, does not survive.

7. The first question that arises is whether Mohit Gupta can be regarded as a "husband" for the purpose of Section 498-A IPC. In Reema Aggarwal (supra), which was a decision of a two-judge bench, the Supreme Court held that the absence of a definition of "husband" specifically including a person who contracts a marriage ostensibly and cohabits with a woman in the purported exercise of his role and status as a "husband", is no ground to exclude him from the purview of Section 304B or 498-A IPC. Thus, in the view of the decision in Reema Aggarwal (supra), Mohit Gupta would clearly fall within the expression "husband" used in Section 498-A IPC. Consequently, the fact of his marriage with the complainant being a nullity would be of no consequence because, admittedly, they did live together as husband and wife. Even the rituals and ceremonies of a marriage were performed. It is another thing that the marriage was void ab initio. The fact remains that Mohit Gupta and Shalini lived together as husband and wife. Therefore, apparently, in view of the decision of the Supreme Court in Reema Aggarwal (supra) the offence under Section 498-A would clearly be made out. It would be interesting to note the reasoning adopted by the Supreme Court in Reema Aggarwal (supra) for including such ostensible "husbands" within the sweep and ambit of Section 498-A. The Supreme Court observed:

8. These are undoubtedly strong words and clearly show that a person who ostensibly contracts a marriage with a woman and lives with her as husband and wife would also be covered within the meaning of the expression "husband" used in Section 498-A IPC. But the matter does not stop here. The Supreme Court, in the case of Shivcharan Lal Verma (supra), which is a decision of a three-judge bench, was of the contrary view. The facts in that case were that during the lifetime of the first wife, Shivcharan married for the second time. But after the marriage both the first wife and Shivcharan tortured the second wife as a result of which she ultimately committed suicide by burning herself. The incident occurred inside the house while Shivcharan and his first wife were in one room and the second wife was in the other. One of the questions which arose before the Supreme Court was whether the provisions under Section 498-A can at all be attracted since the marriage with the second wife itself was null and void, the same having been performed during the lifetime of the first wife. In answer to this question the Supreme Court observed that there was considerable force in the argument of the learned Counsel for the appellant that so far as conviction under Section 498-A was concerned, inasmuch as the alleged marriage with the second wife, during the subsistence of a valid marriage with the first wife, was null and void, the same cannot be sustained. The Supreme Court therefore set aside the conviction and sentence under Section 498-A IPC. Going by this a decision, it is clear that the Supreme Court was of the view that as the second marriage was null and void, Shivcharan could not be regarded as a "husband" within the meaning ascribed to it under Section 498-A IPC. Although the learned Counsel for the respondent had, as noted above, made submissions to the effect that this was not a binding precedent, I don't see as to how this is would not constitute a binding precedent. The point in issue arose out of the facts of the case. It was specifically raised and specifically answered. The ratio of the decision is that a male partner to a null marriage cannot be covered by the expression "husband" as appearing in Section 498-A IPC. It is another thing that the Supreme Court in the case of Shivcharan Lal Verma (supra) did not discuss this question with the same degree of elaboration as in the case of Reema Aggarwal (supra). But, this by itself cannot be construed to mean that in Shivcharan lal Verma (supra), the Supreme Court did not consider the entire scope and ambit of the provisions of Section 498-A IPC. It must also be pointed out that the decision in Shivcharan Lal Verma (supra) has not been noticed in Reema Aggarwal (supra) although the latter decision is later in point of time. So, the decision in Reema Aggarwal (supra) has to be regarded as per incuriam. The second point that has to be kept in mind is that the decision in Shivcharan Lal Verma (supra) has been rendered by a bench of three honourable judges whereas the decision in the case of Reema Aggarwal (supra) is by a bench of two honourable judges. Clearly, the decision in Shivcharan Lal Verma (supra) would be binding. In this context it would be pertinent to note the observations of a Constitution Bench decision of the Supreme Court in the case of P. Ramachandra Rao v. State of Karnataka (2002) 5 SCC 578 wherein the Supreme Court observed [at para 28]:

The well settled principle of precedents which has crystallised into a rule of law is that the bench of lesser strength is bound by the view expressed by a bench of larger strength and cannot take a view in departure or in conflict there from.
Therefore the decision in Shivcharan Lal Verma (supra) will clearly take precedence over the decision in Reema Aggarwal (supra). That being the case, the arguments advanced by the learned Counsel for the petitioners would have to be accepted that the provisions of Section 498-A IPC would not be attracted inasmuch as the marriage between Mohit Gupta and Shalini was null and void and Mohit Gupta could not be construed as a "husband" for the purposes of Section 498-A IPC. Clearly, therefore, the charge under Section 498-A IPC cannot be framed and the Metropolitan Magistrate had correctly declined to frame any charges under Section 498-A IPC. The learned additional Sessions Judge, however, fell into error in the relying upon Reema Aggarwal (supra), when the decision of the larger bench in Shivcharan Lal Verma (supra) to the contrary had also been cited by the counsel for the accused. One may be inclined to agree with the views expressed by a smaller bench of the Supreme Court but, judicial decorum and propriety and the well settled rule with regard to precedents requires that the ratio of the larger bench be followed. Unfortunately, the learned Additional Sessions Judge lost sight of this.