Jharkhand High Court: Amitav K. Gupta, J. disposed of the writ petition holding that for the purpose of Section 498-A Penal Code, 1860 the strict proof of legal marriage is not required in such circumstances wherein the pleadings and evidence are enough to prove the same.
The facts of the instant case are that the petitioner was found sleeping with the husband of the informant at her husband’s house. It is alleged that the petitioner is the second wife. That on the said allegation cognizance has been taken for the offence under Section 498-A IPC against the petitioner.
The counsel for the petitioner relied on the decision of the Supreme Court in U. Suvetha v. State, (2009) 6 SCC 757 and contented that it has been observed by the Supreme Court that the relative of the husband will not include the girlfriend or concubine for attracting the offence under Section 498-A IPC. It was further argued that the informant has stated that the petitioner is the second wife but there is no proof regarding the solemnization of marriage. Hence, even if the allegation is presumed to be true then at best the petitioner can be termed as a mistress or a girlfriend but cannot be categorized as a wife as there is no legal proof for the same.
The counsel for the State has submitted that factum of marriage can only be established when the evidence is led and that in the decision relied above, it has been held by the Supreme Court that proof of a legal marriage in the rigid sense as required under civil law is unnecessary for establishing an offence under Section 498-A IPC.
The Court perused the facts and without getting into the merits of the case held that the trial court had examined six witnesses out of nine charge-sheeted witnesses and the court below has taken steps for securing the attendance of the rest of the witnesses. In the decision relied on by the counsel for the petitioner the Supreme Court has held that if from the pleadings and evidence the court finds that the woman concerned is regarded as wife and not as a mere mistress, she can be considered to be a wife and consequently as the relative of the husband for the purpose of Section 498-A IPC and strict proof of a legal marriage as required under civil law is unnecessary. [Rupa Devi v. State of Jharkhand, 2019 SCC OnLine Jhar 1200, decided on 28-08-2019]
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