The Gujarat High Court on Friday ruled that a woman can file a complaint alleging cruelty under Section 498A of the Indian Penal Code (IPC) after divorce, however, it has to be only for incidents that took place when the couple was still married.
Justice Jitendra Doshi noted 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 judge reasoned that in Section 498A of IPC, the expression used for the accused is “the husband” and “relatives of the husband.”
The court said that 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. “This expression does not include 'former husband' or 'ex-husband' or 'relative of the former husband or ex-husband,” the court said.
However, the court added that the Section 498A states that a “woman” can file a cruelty case, meaning that she need not necessarily be the “wife” at the time of filing the case. “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,” it said.
Therefore, 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, the judge averred.
“However, she cannot file a complaint alleging offence under section 498-A putting allegation of an incident, which could have taken place subsequent to the divorce. Once the competent Court passes 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 underscored.
The Gujarat High Court made the observations while hearing a petition filed by a man and his family seeking quashing of a cruelty case registered against them by the woman after nearly 20 months of divorce. She alleged that her former husband was guilty of adultery on account of his second marriage after their divorce.
Interestingly, the court noted that the woman 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,” it said.
The court quashed the complaint observing that it appears that the case was 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 the former husband and his relatives by divorcee wife. Reading between the lines, the FIR indicates that it is filed to achieve a desired motive,” it averred.