Madhya Pradesh High Court
Dinesh Kumar And Ors. vs Rasik Bihari Joshi And Anr. on 18 December, 1998
Equivalent citations: 1999(2)MPLJ88
ORDER S.S. Jha, J.
1. Counsel for the petitioner has raised a question that the respondent No. 1 Rasik Bihari Joshi had no right to file a complaint for the offences under Sections 494/120B, Indian Penal Code. Learned counsel for the petitioners submitted that for the offence under Section 494, Indian Penal Code complaint can be lodged by the party aggrieved. Respondent No. 1 Rasik Bihari Joshi being the father of the party aggrieved, i.e. Manjulata, has no right to file complaint under Section 200 of the Code of Criminal Procedure (for short, the 'Code'). Learned counsel for the petitioners further submitted that under the provisions of Section 198 of the Code the complaint can only be filed with the consent of the wife.
2. It is alleged that the petitioner No. 1 Dinesh Kumar has married with Shushila Bai (Petitioner No. 1 in Misc. Cri. Case No. 204/98) during the subsistence of his marriage with the daughter of the complainant-respondent No. 1 Rasik Bihari Joshi.
3. The question involved in this case is whether the father of the aggrieved party can file a complaint for the offence under Section 494, Indian Penal Code.
4. Proviso (c) to sub-section (1) of Section 198 of the Code was amended by Act No. 45 of 1978. Proviso (c) is reproduced below :-
"where the person aggrieved by an offence punishable under Section 494 or Section 495 of the Indian Penal Code is the wife, complaint may be made on her behalf by her father, mother, brother, sister, son or daughter or by her father's or mother's brother or sister or with the leave of the Court by any other person related to her by blood, marriage or adoption."
The language of this clause is clear that where the person aggrieved by the offence punishable under Section 494 or 495, Indian Penal Code is the wife, complaint may be made on her behalf by her father, mother, brother, sister, son or daughter or by her father's or mother's brother or sister or with the leave of the Court by any person related to her by blood, marriage or adoption. By the Amending Act, the father is empowered to file complaint on behalf of the wife.
5. Learned counsel for the petitioners submitted that there is no mention in the complaint that the complaint is being filed on behalf of the wife. Learned counsel submitted that the words 'on her behalf would mean the express consent by the party aggrieved. The complaint so filed does not disclose that it is filed on behalf of the aggrieved party.
6. Shri J. P. Gupta, Senior Advocate has appeared as amicus curiae and assisted the Court in determining the question as to filing of the complaint on behalf of the wife.
7. Before amendment the complaint could be filed by the mother, father or any relation on behalf of the aggrieved party with the leave of the Court. But considering the scope of proviso (c) to sub-section (1) of Section 198 of the Code, it is apparent that the relations mentioned in this clause can file complaint on behalf of the wife. The words used is "complaint may be filed on her behalf by her father". Therefore, any complaint made by the father shall be deemed to be proper unless it is established by the defence that the complaint was without consent of the aggrieved party i.e. the wife.
8. The consent is to be inferred from the facts of each case. Consent may be express or implied. In the present case, the aggrieved party, i.e. the wife has entered into the witness box in support of the complaint and her evidence was recorded under Section 202 of the Code. Thus it discloses the implied consent on her part. The words "with her consent" used in the proviso is to be viewed seriously and the Court must consider all the facts while imposing punishment for the offence under Section 494, Indian Penal Code and if it is found that no consent was given by the wife, the complaint is liable to be dismissed.
9. But from the facts of the present case and the evidence on record, it is found that the consent is by the wife. If evidence comes on record that the consent is by the wife, it should be decided according to law. In the present case, implied consent appears on the part of the wife as she entered the witness box and deposed in support of the complaint.
10. The second contention of the learned counsel for the petitioners is that the petitioners 2 and 3 cannot be prosecuted for the offence under Section 494, Indian Penal Code. Learned counsel for the petitioners invited attention to Section 494, Indian Penal Code which is reproduced below :-
"MARRYING AGAIN DURING THE LIFETIME OF HUSBAND OR WIFE :
Whoever, having a husband or wife, living, marries in any case in which such marriage is void by reason of its taking place during the life of such husband or wife, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine."
Learned counsel for the petitioners submitted that the petitioners Nos. 2 and 3 could not be prosecuted for an offence under Section 494, Indian Penal Code as there is no allegation against them in respect of the offence under Section 494, Indian Penal Code .
11. It is true that the petitioners Nos. 2 and 3 could not be prosecuted for the offence under Section 494, Indian Penal Code but they can be prosecuted for the offence under Section 494 read with Section 120B, Indian Penal Code. It is alleged that the petitioners Nos. 2 and 3 helped the petitioner No. 1 in contracting second marriage during the subsistence of first marriage. Therefore, at present, I do not find any ground to interfere with the complaint filed by the respondent No. 1 Rasik Bihari Joshi.
12. The petition is devoid of merits and is dismissed. The record of the trial Court be sent back immediately.
13. This Court expresses its gratitude for the assistance rendered by Shri J. P. Gupta, Senior Advocate in this case.