Women can file cruelty cases under Section 498A IPC after divorce but only for incidents during marriage: Gujarat High Court

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) after divorce, but only for incidents that took place while the marriage was subsisting [Rameshbhai DanjiBhai Solanki vs State of Gujarat].

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 dissolves the marriage.

The Court explained that in Section 498A of IPC, the expression used for the accused is “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 said.

“This expression does not include ‘former husband’ or ‘ex-husband’ or ‘relative of the former husband or ex-husband’, the judgment stated.

The Court, however, also noted that the same provision states that a “woman” can file a Section 498A case, meaning that she need not necessarily be the “wife” at the time of filing the case.

“The legislature while using expression ‘the husband or relatives of the husband’ in section 498A of the IPC, used the word woman and not wife,” the Court said.

Therefore, 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 while the marriage existed.

“However, she cannot file complaint alleging offence under section 498-A putting allegation of an incident, which could have been taken place subsequent to 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 held.

The Court made the observation while quashing a Section 498A case lodged by a divorced woman nearly 20 months after her divorce. The complaint was filed against her ex-husband as well as his family.

Among other allegations, the complainant-woman alleged that her former husband was guilty of adultery on account of his second marriage after their divorce.

Importantly, the Court found that the former wife had not made any specific allegation indicating cruelty or harassment while the marriage existed.

“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,” the bench found.

The Court proceeded to quash the case after opining that the case appeared to have been lodged to wreak vengeance and as a counter blast to the divorce decree.

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,” the Court held.

Advocate E Shailaja appeared for the former husband and his family. Advocate Nirad D Buch represented the woman. Additional Public Prosecutor Ronak Raval represented the State.


Source: Bar & Bench


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