Sreekumar and Another vs Pearly Karun

P.V. Narayanan Nambiar, J.—First petitioner is the husband of the first respondent and second petitioner is the mother of the first petitioner. Crime No. 49 98 of Vaikom Police Station is registered against them. They seek to quash the F.I.R.

First petitioner filed H.M.A.O.P. No. 11/97 for divorce before the Court of the Principal Sub-Judge, Kottayam against the first respondent. The case was taken for settlement on 29.11.1997. The dispute between the parties are settled in the presence of mediators. Parties agreed to continue to reside together. So the case was adjourned to 6.12.1997 for filing a joint application.

It is admitted that on 30.11.1997 the first respondent was taken to the house of the first petitioner with the child and they lived together there for two days, on 30.11.1997 and 1.12.1997. But it is the case of the first respondent that she was subjected to sexual intercourse against her Will and without her consent. It is also her case that thereafter she was harassed and humiliated by the petitioners claiming more amount by way of dowry. As the first respondent was not in a position to meet the demand of the petitioners she was sent to her house. The dispute was not settled as agreed upon on 29.11.1997. '' ''

She laid information before the police alleging an offence punishable under Sections 376-A, 498-A read with Section 34, Indian Penal Code. Crime was registered on her information. The prayer is to quash the same.

I am afraid that offence u/s 376-A, Indian Penal Code is not attracted on the facts of the Case. Section 376-A is extracted hereunder :

"Intercourse by a man with his wife during separation-Whoever has sexual intercourse with his own wife, who is living separately from him under a decree of separation or under any custom or usage without her consent shall be punished with imprisonment of either description for a term which may extend to two years and shall also be liable to fine."

An offence u/s 376-A will be attracted only when sexual intercourse is conducted by a man with his wife who is living separately from him under a decree of separation or under any custom or usage without her consent. It is not the case of the de facto complainant that there was a decree of separation or they were residing together under any custom or usage. On the other hand it is her case that she voluntarily joined her husband, the first petitioner, and they have been staying for two days together in his house as husband and wife. In such circumstances even if she is subjected to sexual intercourse as alleged no offence u/s 376-A will be attracted. Hence registration of the crime u/s 376-A is misconceived.

Offence u/s 498-A is prima facie attracted on the facts of the case. Allegations are there in the first information statement to the effect that the complainant was ill-treated and humiliated demanding more amount as dowry. In the light of those allegations it cannot be said that the registration of the crime u/s 498-A is not called for. Hence the prayer for quashing proceedings initiated u/s 498-A cannot be allowed.

In the light of what is stated above the Crl. M.C. is allowed in part. The registration of the crime u/s 376-A will stand quashed, whereas the registration of the crime u/s 498-A read with Section 34, Indian Penal Code is upheld. The investigation will be proceeded to decide whether the offence u/s 498-A is committed or not.