The Gujarat High Court on Friday held that a woman can file a complaint alleging cruelty under Section 498A of the Indian Penal Code (IPC) even after divorce, but it applies only for incidents that had taken place while the marriage was subsisting.
Justice Jitendra Doshi held that such cases cannot be filed in respect of offences or incidents that take place after a competent court grants divorce and dissolution of marriage.
The Court examined that in Section 498A of IPC, the expression used for the accused in “the husband” and “relatives of the husband.”
This is reflective of the proposition that for levelling allegations under Section 498A of the IPC, the status of “the husband” or “relatives of the husband” must exist, the Court confirmed.
The judgment stated, “This expression does not include ‘former husband’ or ‘ex-husband’ or ‘relative of the former husband or ex-husband.”
The Court, however, also took into consideration that the same provision states that a ‘woman’ can file a Section 498A case, which means that she shouldn’t necessarily be the ‘wife’ at the time when she is filing the case.
The Court said, “The legislature while using the expression ‘the husband or relatives of the husband’ in section 498A of the IPC, used the word woman and not wife.”
As a result, the judge held that a complaint under Section 498A can be maintained even by a divorcee-wife, provided that the alleged incident of harassment and cruelty was meted out during the existence of marriage.
The Court further held, “However, she cannot file a complaint alleging offence under section 498-A putting allegation of an incident, which could have been taken place after the divorce. Once the competent Court passed the decree of divorce, the marital status of the husband and wife is snapped and the pre-requisite condition of section 498-A ‘being the husband’ or ‘relatives of the husband’ disappears.”
The Court observed while quashing a Section 498A case which was lodged by a divorced woman even after around 20 months of her divorce. The complaint was filed against her ex-husband and also his family.
The complainant (woman) made allegations of adultery on her ex-husband. She alleged that her former husband was guilty of adultery on the ground of his second marriage after their divorce.
The Court found that the former wife had not made any specific allegation indicating cruelty or harassment while the marriage existed.
The bench found, “What appears from the bare reading of the FIR is that the complainant was aggrieved on the ground that her former husband remarried subsequent to divorce decree … The complainant has also not mentioned as to how she was physically and mentally harassed by the petitioners. The allegations levelled are in general form.”
Further, the Court quashed the case after opining that the case appeared to have been lodged to wreak vengeance and as a counter assail to the divorce decree.
The Court eventually held, “The impugned FIR on its bare face indicates that it is filed against former husband and his relatives by divorcee wife. Reading between the lines, the FIR indicates that it is filed to achieve a desired motive.”
Advocate E Shailaja appeared for the former husband and his family. Whereas Advocate Nirad D Buch appeared for the woman. Additional Public Prosecutor Ronak Raval represented the State.
Source: https://www.barandbench.com/news/woman-cruelty-section-498a-ipc-divorce-incidents-marriage-gujarat-high-court
