Delhi District Court
Sh. Gaurav Sharma vs Smt.Shipali Sharma on 29 August, 2016
IN THE COURT OF SH. NARESH KUMAR MALHOTRA: ASJ05 :
WEST DISTRICT, TIS HAZARI COURTS, DELHI
CR. No. 37/16 & Cr.No. 26/16
In the matter of :
Sh. Gaurav Sharma
S/o Pt.Jagmohan Sharma
R/o H1/125, Second Floor,
Vikas Puri, New Delhi.
............ Petitioner.
VERSUS
Smt.Shipali Sharma
w/o Sh.Gaurav Sharma
R/o H1/125, Ground Floor,
Vikas Puri, New Delhi. ............. Respondent
AND
Smt.Shipali Sharma
W/o Sh.Gaurav Sharma
R/o H1/125, Ground Floor,
Vikas Puri, New Delhi. ............. Petitioner
VERSUS
(1)State
(2)Sh.Jagmohan Sharma
S/o Sh.Bishambhar Dayal
R/o H.No. H1/125, Ground Floor,
Vikas Puri, New Delhi.
(3)Smt.Usha Sharma
W/o Sh.Jagmohan Sharma
R/o H1/125, Ground Floor,
CR Nos.37/16 and 26/16 Page No. 1 of 11
Vikas Puri, New Delhi.
(4)Smt.Saraswati
D/o Sh.C.P.S.Chauhan
R/o 192, A4 Block,
Paschim Vihar,
New Delhi
(5)Smt.Nirmal Devi
W/o Sh.C.P.S.Chauhan,
R/o 192, A4 Block,
Paschim Vihar,
New Delhi.
(6)Sh.Dipender Chauhan
S/o Sh.C.P.S.Chauhan,
R/o 192, A4 Block,
Paschim Vihar,
New Delhi. ........Respondents.
DATE OF INSTITUTION : 16.05.2016
(CR No.37/16)
and
18.03.2016
(CR no. 26/16)
DATE OF RESERVING THE JUDGMENT : 26.08.2016
DATE OF DECISION : 29.08.2016
JUDGEMENT
1. The present revision petition has been filed by the petitioner Shepali Sharma against the order dated 23.02.2015 passed by the Ld. MM. By this Judgment, I am also deciding the CR Nos.37/16 and 26/16 Page No. 2 of 11 revision petition filed by Sh.Gaurav Sharma against the order dt. 23.02.2016. Both the revision petitions have been filed against the same order i.e. dt. 23.02.2016, so both the revision petitions are being decided together.
2. Aggrieved by the said order, the revision petition has been filed by the petitioner Shepali Sharma on the ground that Ld.M.M. has failed to appreciate the evidence and she has specifically made allegations against the respondent no.2 to
6. She has also deposed in her evidence that respondents no.2 to 6, despite knowledge of pendency of an appeal, have actively participated and abetted the commission of an offence. They also actively participated in conducting the second marriage of her husband Sh.Gaurav Sharma with respondent no.4. She has examined CW1 Dr.Vivek Kumar, SDM, Patel Nagar, Delhi who had proved the affidavits of respondent no.4 and 5 submitted alongwith the application wherein the respondents no.2,3,5 and 6 have signed as witnesses. It is also mentioned that respondent no.2 Sh.Jagmohan Sharma was specifically informed about the pendency of the appeal and same is evident from the record of court proceedings dt. 21.11.2013 of case Cr.no. 90/11 titled as Jagmohan Sharma Vs. Shipali Sharma of the court of Ms.Pinki, Ld.ASJ, Special Judge (NDPS) West, Delhi. Ld.M.M. has also failed to appreciate that the said marriage CR Nos.37/16 and 26/16 Page No. 3 of 11 of Sh.Gaurav Sharma with the respondent no.4 is illegal and was done to deprive the petitioner of her legal rights as wife of Sh.Gaurav Sharma. Ld.Magistrate has failed to appreciate the Section 15 of the Hindu Marriage Act, 1955. It is also mentioned that Sh.Gaurav Sharma and the respondent nos.2 to 6 were legally bound to confirm whether the appeal against the order of grant of divorce is pending or not and only then they can proceed for second marriage as during the pendency of appeal Sh.Gaurav Sharma and the respondent nos.2 to 6 were prohibited from performing the marriage as per the Section 15 of H.M.Act. It is also mentioned that Sh.Gaurav Sharma and respondents no.2 to 3 knew that the appeal is pending against the order of grant of divorce and the respondents no.4 to 6 also knew the position that appeal is pending and have deliberately abetted the crime. It is also mentioned that the Ld.Magistrate has passed the impugned order mechanically, without application of mind and thereby not summoning the respondents no.2 to 6 in the above mentioned complaint case without giving any reason. It is prayed that order dt. 23.02.2016 passed by the Ld.M.M. be set aside and respondents no.2 to 6 be summoned.
3. Sh.Gaurav Sharma has also challenged the order dt.23.02.2016 on the ground that the order was passed by the Ld.M.M. in a mechanical manner without appreciating CR Nos.37/16 and 26/16 Page No. 4 of 11 the evidence and law. It is also mentioned that after expiry of 90 days from the date of divorce, he has married with Smt.Saraswati. It is also mentioned that Ld.M.M. has passed the summoning order without appreciating the evidence and law in this regard. The ld.trial court has failed to appreciate that he has not committed any offence of bigamy as the period of filing an appeal against the divorce decree is 30 days as provided under Family Courts Act and 90 days as provided under the Hindu Marriage Act. The petitioner has remarried with Smt.Saraswati after the expiry of 90 days from the date of Judgment and no stay was granted by the Hon'ble High Court of Delhi in Appeal filed by the respondent Shepali Sharma. It is also mentioned that ld.trial court has failed to appreciate that the burden is on the respondent to prove the second marriage of the petitioner as mere admission of the second marriage of the petitioner is of no consequence. It is also mentioned that after taking divorce on 11.09.2013, the marriage with the respondent/complainant was not subsisting, thus, the petitioner has not committed any offence U/s 494 IPC. It is prayed that the order dt. 23.02.2016 be set aside.
4. Reply to the revision petition was filed by the respondent/complainant wherein she has mentioned that the revision petition is not maintainable. She has mentioned that CR Nos.37/16 and 26/16 Page No. 5 of 11 the ld.trial court has passed the abovesaid order after considering the evidence, material on record and facts & circumstances of the case, but erroneously did not summon the other accused persons named in the complaint filed by the respondent. She has also mentioned that the petitioner was having knowledge about the pendency of appeal. The Judgment passed by the Ld.Judge, Family Court, Rohini Courts, was set aside by the Hon'ble High Court of Delhi vide Judgment dt. 27.03.2015 and the order passed by the Hon'ble High Court of Delhi was confirmed by the Hon'ble Supreme Court of India vide order dt. 24.08.2015. It is mentioned in the reply that the petitioner with malefide intention has married with Smt.Saraswati during the pendency of appeal and the appeal is nothing but extension of the trial and petitioner has not denied the knowledge about the pendency of appeal before the Hon'ble High Court and hence committed an offence U/s 494 IPC. It is prayed that the revision petition be dismissed.
5. I have heard ld. Counsel for the petitioner and ld. Counsel for the respondents and perused the record carefully.
6. It is contended by the ld. counsel for the petitioner Gaurav Sharma that essential ceremonies were not proved by the complainant in her testimony before the ld.trial court. It is also contended that the Poojari before whom the essential CR Nos.37/16 and 26/16 Page No. 6 of 11 ceremonies were performed, has not been examined by the complainant. Thus, it is not proved that essential ceremonies of the marriage of Gaurav Sharma with Smt.Saraswati have been performed. Thus, no case U/s 494 IPC is made out.
7. Ld. counsel for the petitioner Sh.Gaurav Sharma has placed reliance upon the Judgment titled as Bhaurao shankar Lokhande & Anrs. Vs. State of Maharashtra & Anrs. AIR 1965 SC 1564.
I fail to appreciate this contention of the ld.counsel as it is an admitted fact of Sh.Gaurav Sharma that he has married with Smt.Saraswati on 13.12.2013 at Arya Smaj Mandir, B block, Janak Puri and this marriage was registered on 19.12.2013 at Sub Divisional Magistrate, Patel Nagar. Dr.Jagmohan, father of Gaurav Sharma has given identification certificate before the Sub Registrar and in this certificate, he has clearly mentioned that marriage of Gaurav Sharma was solemnized with Smt.Saraswati Sharma as per Hindu rites. Thus, this contention carries no force.
8. It is also vehemently contended by the ld. counsel for the petitioner Gaurav Sharma that the petitioner Gaurav Sharma has solemnized the marriage with Smt.Saraswati after an expiry of period of appeal on 13.12.2013 and at the time of marriage, Gaurav Sharma has already taken divorce from the complainant on 11.09.2013. Thus, ingredients of Section 494 CR Nos.37/16 and 26/16 Page No. 7 of 11 IPC are not fulfilled in the present case. He has also placed upon the Judgment titled as Pashaura Singh Vs. State of Punjab & Anr.
I have perused this judgment with utmost regard. This Judgment is not helpful to the petitioner Gaurav Sharma as in the present case, it is to be seen whether the fact of filing of an appeal was in the knowledge of the respondents or not.
9. Admittedly, the Judgment of divorce was passed on 11.09.2013 by the Ld.Principle Judge, Family Court and the respondent married with Smt.Saraswati on 13.12.2013.
10. Ld. counsel for the complainant Smt.Shepali Sharma has drawn my attention towards the Section 15 of the Hindu Marriage Act which is as follows :
"Divorced persons when may marry again - When a marriage has been dissolved by a decree of divorce and either there is no right of appeal against the decree or, if there is such a right of appeal, the time for appealing has expired without an appeal having been presented, or an appeal has been presented but has been dismissed, it shall be lawful for either party to the marriage to marry again".
11. Now the question arises whether the respondent Gaurav Sharma or his parents or other respondents were aware about the pendency of the appeal filed by the complainant Shepali Sharma in the Hon'ble High Court of Delhi.
12. It is an admitted fact that the divorce was granted to CR Nos.37/16 and 26/16 Page No. 8 of 11 Gaurav Sharma vide Judgment dt 11.09.2013 passed by the Ld.Principle Judge. It is also an admitted fact that the complainant Shepali Sharma has initiated the proceedings under D.V.Act against her husband Gaurav Sharma and her inlaws. It is also an admitted fact that respondent no.2 Sh.Jagmohan Sharma has also filed a revision petition having CR no. 90/11 titled as Jagmohan Sharma Vs. Shepali Sharma and that revision petition was pending in the court of Ms.Pinki, Ld. ASJ. During the pending of the proceedings in revision petition bearing no. CR 90/11 on 21.11.2013, Sh.Jagmohan has appeared alongwith proxy counsel on the first call and an application was filed by Jagmohan Sharma for bringing on record the subsequent exhibits and copy of Judgment and the matter was taken up at 12 noon. At 12 noon, on 21.11.2013, the Ld.ASJ passed the following order :
"Ld. Counsel for respondent has submitted that he is not in receipt of copy of the Judgment, certified copy of which has been filed today. Ld. Counsel for revisionist undertakes to supply the same within one week. Ld. Counsel for respondent has produced copy of order dt. 25.10.2013 vide which the respondent has impugned the judgment dt. 11.09.2013 passed by Sh.Deepak Jagotra, Judge/Family Court which is reported fixed for 27.11.2013 before the Hon'ble High Court.CR Nos.37/16 and 26/16 Page No. 9 of 11
TCR be sent back and summoned for the next date of hearing.
Put up for arguments on 28.01.2014".
13. Thus perusal of the order reveals that on 21.11.2013, the counsel for the respondent i.e.the complainant has produced the copy of order dt. 25.10.2013 vide which the respondent has impugned the Judgment passed by Sh.Deepak Jagotra, Ld.Family Judge and it was also informed that the next date of hearing before the Hon'ble High Court of Delhi was 27.11.2015. Thus, Dr.Jagmohan Sharma was having knowledge and the ld. Counsel for the complainant has filed the copy of order dt. 25.10.2013 passed by the Hon'ble High Court of Delhi. As Dr.Jagmohan Sharma is the father of Sh.Gaurav Sharma and it is not probable that Dr.Jagmohan will not tell about the factum of filing of appeal by the complainant before the Hon'ble High Court of Delhi to his son Gaurav Sharma and his wife Smt.Usha Sharma.
14. Perusal of the trial court reveals that Dr.Jagmohan Sharma has given identification Certificate before the concerned SDM that the marriage of Gaurav Sharma with Smt.Saraswati was solemnized in his presence on 13.12.2013 at Arya Smaj Mandir, B Block, Janak Puri, Delhi according to Hindu rites. Thus, the respondent has admitted that the marriage was solemnized according to Hindu rites. The said CR Nos.37/16 and 26/16 Page No. 10 of 11 certificate shows that Dr.Jagmohan Sharma has attended the marriage of Gaurav Sharma. Moreover, on the certificate,the mother of Gaurav Sharma namely Smt.Usha Sharma has also signed as a witness, which also shows that she has attended the marriage of Gaurav Sharma on 13.12.2013 at Arya Smaj Mandir, B Block, Janak Puri, Delhi.
15. There is enough material on record to summon the respondents no.1 to 3. There is no evidence on record to show that the respondents no.4 to 6 were aware about the factum of filing of appeal by the complainant against the Judgment dt. 11.09.2013. Thus,the revision petition filed by Sh.Gaurav Sharma is dismissed as the same is without any merit.
16. The revision petition filed by Smt.Shepali Sharma is partly allowed. Respondents no.2 and 3 be also summoned under the provisions of Section 494 IPC r/w Section 109 IPC.
Ld.trial court is directed to proceed as per Law. Trial court record be sent back alongwith copy of Judgment.
Both the Revision files be consigned to Record Room, after necessary compliance.
Announced in the Open Court (Naresh Kumar Malhotra)
on 29.08.2016 ASJ05 (West)/THC/Delhi
CR Nos.37/16 and 26/16 Page No. 11 of 11