Punjab-Haryana High Court
Ashok Kumar Chopra vs Krishna Kumari on 20 September, 1991
Equivalent citations: (1992)101PLR77
JUDGMENT Harmohinder Kaur Sandhu, J.
1. Ashok Kumar has filed this petition under Section 482 of the Code of Criminal Procedure, 1973 for quashing the complaint dated 9-9-1987 filed by Krishan Kumari respondent under Section 494 of Indian Penal Code and the entire proceedings initiated thereupon, including the impugned order dated 18-5-1989 passed by Judicial Magistrate 1st Class, Karnal, whereby charge against the petitioner was ordered to be framed under Section 494 I.P.C.
2. The brief facts of the case that emerge from the complaint are that Krishna Kumari was married to Ashok Kumar according. to Hindu rites at Karnal on 2-10-1984. Thereafter she resided with the petitioner in the house of her in laws. Ashok Kumar, his parents and sisters started taunting Krishna Kumari for not bringing adequate dowry and continued harassing her in spite of the entreaties made by her and her parents. Finding that father of Krishna Kumari was unable to fulfil their demands, they turned out Krishna Kumari from the house on 12-11-1984. Efforts to rehabilitate Krishna Kumari made by her and her parents remained futile. Ashok Kumar rather filed a petition under Section 12 of the Hindu Marriage Act claiming that Krishna Kumari was impotent and of unsound mind. He sought annulment of marriage but when Krishna Kumari was found medically fit that petition was withdrawn. After withdrawal of the petition Krishna Kumari and her parents again approached Ashok Kumar and his parents when they Were assured that Krishna Kumari will be rehabilitated. On 19-2-1986 Krishna Kumari learnt that Ashok Kumar had contracted a second marriage with Raj Kumari. Enquiry was made by the father of Krishna Kumari regarding second marriage by Ashok Kumar when he found that Ashok Kumar had obtained an ex parte decree of divorce by managing a false report of refusal on the summons. An application was then moved for setting aside the ex parte decree of divorce dated 6-1-1986. In reply to that application Ashok Kumar admitted that after passing of the exparte decree of divorce he had entered into a second marriage With Raj Kumari. The second marriage was performed according to Hindu rites on 16-2-1986 in a temple known as 'Deviwala' situated in Gharaunda, Tehsil and District Karnal by Pandit Prithi Ram, resident of village Rajpur Jattan. It was performed with the active support and connivance of the parents of Ashok Kumar and parents of Raj Kumari and, thus, complaint under Section 494 I. P. C. was filed against all these persons-for the commission of offence of bigamy by Ashok Kumar and abetment of the offence by the other accused arraigned in the complaint. Vide the impugned order, the Judicial Magistrate 1st Class, Kamal, found that a prima-facie ease for commission of offence punishable under Section 494 I. P. C. was made out against Ashok Kumar petitioner and he was ordered to be charge-sheeted accordingly.
3. I have heard the counsel for the parties.
4. It was argued on behalf of the petitioner that essential ingredients of the offence under Section 494 I. P. G. were missing in the complaint as well as evidence recorded before passing the impugned order. There was nothing to suggest that Ashok Kumar had contracted valid second marriage. There were no specific allegations about the essential ceremonies which were required to be performed at the time of solemnization of marriage. Unless the second marriage is valid and lawful and there are allegations in the complaint that marriage was solemnized according to statutory rites of Havan and Saptapadi no marriage is complete and lawful and no legal consequences flow out of it. In support of his contention the learned counsel for the petitioner placed reliance on Bhaurao Shanker Lokhande v. The State of Maharashtra, A. I. R. 1965 S. C. 1564. and Lingari Obulamma v. Venkata Reddy, A. I. R. 1979 S. C. 848. In this later authority it was held by their Lordships of the Supreme Court that where there was absolutely no evidence to prove that any of the two essential ceremonies i.e. Datta Homa and Saptapadi had been performed at the time of second marriage and the existence of the custom in the community to put the 'Yarn Thread' instead of 'Manual Sutra' was neither mentioned in the complaint nor proved in the evidence, the conviction under Section 494 I. P. C. could not be sustained.
5. In the present case there were no specific allegations made in the complaint regarding the form of marriage as well as the ceremonies performed at the time of solemnization of marriage. The only allegation made was that marriage was performed by a pandit according to Hindu rites When there were no specific pleas regarding essential ceremonies as well as the evidence to that effect the marriage cannot be considered to be a valid marriage. Resham Singh v. Kartar Singh (1984) 86 P. L. R. 78 is an authority on this point. In this case both the eye witnesses had no where stated about the essential ceremonies of the marriage known as Anand Karaj. It was held that marriage by Anand Karaj has essential ceremonies of four Lavans made by the groom and followed by the bride around the holy Guru Granth Sahib amidst the chanting of recitations of the hymns composed ?by the fourth Guru, Guru Ram Dass and when the witnesses did not state about that ceremony their saying that Anand Karj was performed was not enough.
6. A perusal of the impugned order shows that two witnesses P. W. 1 Prithi Ram and P. W. 2 Mathura Dass Pandit deposed about the marriage of Ashok Kumar with Raj Kumari but they did not say anything about the performance of essential ceremonies of marriage, i.e. 'Homa' and 'Saptapadi'. But a prima-facie case found to have been made out against Ashok Kumar on the basis of orders Ex. P-2 and Ex. D-3 passed by the Additional District Judges wherein some reference was made to the admission of Ashok Kumar about his marriage with Raj Kumari. Copies of these orders were placed on record which are Annexures P-2 and P-3. Annexure P-2 is copy of the judgment vide which a petition under Section 13 of the Hindu Marriage Act filed by Ashok Kumar petitioner was dismissed and Annexure P-3 is copy of the judgment passed in a petition under Section 12 of the Hindu Marriage Act filed by Ashok Kumar which was dismissed as withdrawn. In both these cases the question of validity of marriage of Ashok Kumar with Raj Kumari was not involved and even if Ashok Kumar admitted that he had married Raj Kumari, that was not sufficient to charge him with the offence of bigamy. In the case of Hamir Kaur v. Atal Singh and Anr., 1974 C. L. R.288. it was observed :-
"Proof of solemnization of second marriage in accordance with essential religious rites applicable to parties is a must for conviction for bigamy and that mere admission of an accused of contracting second marriage is not enough."
7. Similar question arose for decision in the case of Raj Pal Singh and Anr. v. Smt. Raj Dulari alias Rajeshwari Singh, 1990 (1) C. L. R.588. wherein it was observed :-
"Where the complainant has neither pleaded nor proved either the form of marriage or the essential ceremonies performed for the solemnization of first marriage of Dharam Pal with Sheela Devi or in a case of a subsequent marriage with the present complainant, the documentary evidence produced in the case either in the shape of photographs of the subsequent marriage or application under Section 125 Cr. P. C. filed by the first wife against Dharam Pal would not be sufficient to make out a prima facie case for commission of offence of bigamy."
8. In view of the above mentioned authorities it is very well made out that in order to make out a prima-facie case for the commission of bigamy it is necessary to allege form of marriage as well as essential ceremonies required for solemnization of a valid marriage and then to lead some evidence in support thereof. Even the admission of second marriage by the petitioner is of no avail to the complainant. This inherent infirmity exists in the pleadings as well as in pre-charge evidence which cannot be cured at the stage of trial and under these circumstances continuance of proceedings will amount to abuse of process of Court.
9. For the foregoing reasons, the petition is allowed, the complaint dated 9.9.1987 and subsequent proceedings including the order dated 18.5.1989 Annexure P-2 regarding framing of charge against the petitioner are hereby quashed.