Woman Can Seek Protection Under Section 498A IPC When There Is Some Form Of Marriage Having Colour Of A Legal Marriage: Kerala HC

The Kerala High Court has ruled that if there is some form of marriage, religious or customary, which has the colour of a legal marriage, then also the woman can seek protection under Section 498A.

The Court was considering a criminal appeal challenging conviction of a man and his family member challenging their conviction and sentence under Section 498A read with Section 34 of IPC.

The single-bench of Justice Sophy Thomas observed, "It was not a case of ‘no marriage’ and only ‘live-in-relationship’. Based on Narayanan’s decision cited supra, we can say that if there was some form of marriage, religious or customary, which has the colour of a legal marriage, then also the woman can seek protection under Section 498A, though later, for some reason, that marriage is found to be invalid in the eye of law."

The Appellants were represented by Advocate Sri Babu S. Nair while the Respondent was represented by Public Prosecutor Seena C.

The prosecution's case was that the victim who was 18 years old committed suicide due to the matrimonial cruelties meted out to her, by the accused persons, who are her husband and in-laws, and also due to the harassment on demand of dowry. She was a Hindu by religion and had a love affair and got pregnant with the child of the  accused herein who is a Muslim by faith. She was converted to Islam and had a Nikah as per the Muslim rituals. At the house of accused, she led a miserable life as they ill-treated her physically as well as mentally and they harassed her, on demand of dowry as well. A marriage agreement was meanwhile signed between the two. However, she ultimately succumbed to suicide consuming poison as a result of cruelty being meted out to her.

The accused persons were charge sheeted for offences punishable under Sections 498A, 304B and 306 read with Section 34 of IPC. The Prosecution could not prove the guilt of the accused under Section 304B and 306 of IPC and so, they were acquitted thereunder. But, they were found guilty under Section 498A read with Section 34 of IPC and each of them was convicted and sentenced to undergo rigorous imprisonment for three years and fine of Rs.10,000/- with a default sentence of rigorous\ imprisonment for six months each.

Counsel for the Appellants contended that, the harassment and cruelty mentioned in Section 498A of IPC must be of the nature, sufficient to drive the wife to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical), so as to convict the accused for that offence. According to him, ordinary quarrel between spouses cannot come under the definition of cruelty under Section 498A of IPC. So, he would argue that the conviction and sentence of the accused without any specific incidents of cruelty, or harassment on specific demand of dowry, are liable to be set aside. He also averred that the marriage was not a valid one and in order to convict the accused under Section 498A of IPC, there must be a valid marital relationship.

The Court at the outset noted that the appellants are also not disputing the fact that the victim committed suicide by consuming poison and testimony of witnesses in the case are sufficient to substantiate the prosecution case that, the victim girl was driven to commit suicide by the ill-treatment and harassment meted out to her by her husband and in-laws on demand of dowry, which will come under the definition of cruelty under Section 498A of IPC.

The Court while deliberating on the contention of the Counsel for the Appellant that a legal marriage is essential, and only a legally wedded wife, can claim protection under Section 498A of IPC, and in the absence of such a legal relationship as husband and wife, there cannot be a conviction under that Section, referred to Supreme Court's decision in Narayanan v. State of Kerala.

It was held in that case that a marriage agreement though registered cannot be a substitute for a legally valid marriage, and so it cannot be accepted as a valid marriage document. But, when there is some form of marriage, either religious or customary, which has the colour of a legal marriage, the woman can seek protection under Section 498A of IPC, though later, for some reason as to age, mental status, religion, consanguinity, spouse living etc. etc., the marriage was found to be invalid in the eye of law. In that case there was no marriage at all, and there was only live-in-relationship on the basis of a marriage agreement. Under that circumstance, the court held that a woman cannot seek shelter under Section 498A of IPC, on the ground that they were holding out to the society, as man and wife, by their long cohabitation, after a marriage agreement. 

With regard to the contention that, that when the Child Marriage Act prohibits child marriage, it supersedes the Muslim personal law and that if one of the parties to the marriage is a minor, irrespective of the validity of their marriage under the Muslim personal law, penetrative sexual intercourse with a child will come under the sweep of POCSO Act, even if it is under the guise of a marriage, the court observed, "So, his argument is that, since the ‘Nikah’ of Asmabi with the 1 st accused was conducted, while she was a minor, it cannot be treated as a valid marriage under secular law, and so an offence under Section 498A cannot be found against the accused. But, going by the facts, there is nothing to show that Asmabi was a minor at the time of ‘Nikah’. If at all she was a minor, under Muslim Law, a minor girl can contract marriage after attaining puberty. Under Mohammedan Law, still that marriage is recognised as valid."

The Court further cited Moidutty Musliyar and Khaledur Rahman to reiterate that when a particular act complained of, constitutes an offence under a special statute, that statute will prevail, and the personal law or customary law shall stand abrogated to the extent of its inconsistencyb

"It is trite law that when the provisions of a statute are repugnant to, or contrary to the customary law or personal law, in the absence of any specific exclusion of the said customary or personal law, from the statutory provisions, the statute will prevail. When a marriage which is valid under the customary or personal law or any act committed within that marriage are called in question as it constitute an offence under a special statute, inviting penal consequences, no doubt, the special law will prevail, in spite of legality of that marriage under the customary or personal law. But the marriage under the customary or personal law, which is otherwise valid, has to be treated as valid between parties to that marriage for all practical purposes, unless and until it is challenged by any of the parties to that marriage, and declared void on any valid grounds," the court observed.

The Court thus stated that even though there was no registration of marriage under secular law, marriage between the deceased and the accused was contracted as per Muslim Personal Law and it was acknowledged by both of them.

The Court noted that although it is true that when a particular act complained of constitutes an offence under a special enactment, even if it is committed within a marriage recognized under personal law, the special statute will prevail, in the absence of any specific exclusion of the customary or personal law from the statutory provisions but here, there is nothing to show that the deceased was a minor at the time of ‘Nikah’.

"If at all she was a minor, she had attained puberty, and so, that marriage was valid under Mohammedan Law. That marriage was never called in question under the Child Marriage Act or any other special enactment inviting penal provisions," the court observed.

The appeal was accordingly partially allowed.

Cause Title: Abdul Khader vs. The State Of Kerala (2024:KER:82312)

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