Second Wife Can’t File Cruelty Case Against Husband: Karnataka HC

Bengaluru: The Karnataka High Court has set aside the conviction of a 46-year-old man under Section 498A (married woman subject to cruelty) of the Indian Penal Code (IPC) as the complaint was his ‘second wife’, making the marriage “null and void”. The single judge bench of Justice S Rachaiah in its judgement said, “Once PW.1 (complainant woman) is considered as the second wife of the petitioner, obviously, the complaint filed against the petitioner for the offence under Section 498-A of IPC ought not to have been entertained.” “In other words, a complaint filed by the second wife against the husband and her in-laws is not maintainable. The courts below committed an error in applying the principles and also the law in this aspect. Therefore, interference by this court in exercising the revisional jurisdiction is justified,” it said. The court was hearing a Criminal Revision Petition filed by Kantharaju, a resident of Vittavathanahalli in the state’s Tumakuru district. The complainant had claimed that she was Kantharaju’s second wife and that they lived together for five years and had a son together. But she later got paralysed and became incapacitated. Kantharaju began harassing her after this and subjected her to cruelty and mental torture, she said. She lodged a complaint against him and the Trial Court in Tumakuru found him guilty in January 2019. The conviction was confirmed by a Sessions Court in October 2019. Kantharaju approached the High Court with the Revision Petition the same year. The High Court set aside the lower court order as it found that a second wife was not entitled to file a complaint under Section 498A. “The prosecution has to establish that the marriage of PW.1 is legal or she is the legally wedded wife of the petitioner. Unless it is established that she is the legally wedded wife of the petitioner, the courts below ought to have acted upon the evidence of PWs.1 (complainant woman) and 2 (her mother) that PW.1 was the second wife,” it said. Citing two judgements of the Supreme Court – Shivcharan Lal Verma case and the P Sivakumar case, the High Court, “The ratio of these two judgments of the Hon’ble Supreme Court clearly indicates that if the marriage between the husband and wife ended as null and void, the offence under Section 498A of IPC cannot be sustained.” Setting aside Kantharaju’s conviction, the court said, “Admittedly, in the present case, the complainant in her evidence, PW.2 being the mother of PW.1 both have consistently deposed and admitted that, PW.1 is the second wife of the petitioner. Accordingly, the concurrent findings of the courts below in recording the conviction require to be set aside.”

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