Delhi District Court
Mamta Sharma vs . Subash Sharma & Ors 1 on 4 June, 2016
IN THE COURT OF MS. SAUMYA CHAUHAN,
METROPOLITAN MAGISTRATE-07, WEST, THC NEW DELHI
Mamta Sharma V. Subhash Sharma & Anr.
CC No.38/1/2012
PS Paschim Vihar
ORDER ON CHARGE
1. By this order the court shall decide on the point of charge.
2. The briefly stated facts as per the complaint are that the marriage of
complainant and accused no.1 Subhash Sharma was solemnized on
09.01.1999 according to Hindu rites and customs at Paschim Vihar, New
Delhi. Out of the said wedlock, two children i.e one daughter and one son
were born on 09.03.2000 and 22.08.2001 respectively.
3. It is the allegation of the complainant that on 23.01.2011, the accused
no.1 had got married to Kusum Lata, respondent no.2(not summoned) at
Arya Samaj Vivah Mandir Trust, Jamuna Bazar, New Delhi in presence of accused no.3 and 4 who stood as the witness to the said marriage, during subsistence of his first marriage. It has been further alleged that the accused no.1 had given a false affidavit on Oath at Arya Samaj Mandir at the time of marriage making a declaration that he was unmarried at that time.
4. It has been alleged by the complainant that accused no.3 and 4 were very well aware of the fact that accused no. 1 is already married and his marriage was still subsisting at the time of the second marriage. Still, they participated and played an active role in the second marriage of accused no.1.
Mamta Sharma Vs. Subash Sharma & Ors 1
5. On 09.08.2011, the complainant came to know about the factum of the second marriage of the accused due to the change in his behaviour towards her and the children. On 07.10.2011 she called on 100 number and stated all the facts to the police.
6. The complainant made a written complaint on 29.02.2012 at PS Sarita Vihar and at CAW Cell, Shri Niwas Puri. On 19.06.2012, the accused no.1 filed a Deed of divorce before the officers of CAW Cell stating that the marriage between him and Kusum Lata has been dissolved. Hence, he has admitted the factum of his second marriage. It has been alleged that the accused persons have committed an offence under Section 494/109/181/199 IPC read with Section 120B IPC and 34 IPC.
7. The accused no.1, 3 and 4 were summoned to face trial for offence under Section 494 IPC read with Section 120B IPC.
8. The complainant has lead pre-charge evidence and entered the witness box as CW-1. She has corroborated the averments made in her complaint. The documents relied upon and exhibited by the complainant are as follows:-
1. Copy of marriage card of the complainant and the accused no.1 is Ex. CW1/A.
2. Birth certificates of both her children, the marriage photographs and family photographs are Ex.CW1/B, Ex.CW1/C and Ex.CW1/D (colly).
3. The copy of affidavits of accused Subhash and Kusum Lata are Ex. CW2/A and Ex.CW2/B respectively.
4. Photocopies of the Election I-card and PAN card of Babli and Ums are Mark X1 and Mark Y respectively.
5. The copy of the proceedings before CAW Cell is Ex. CW2/1.Mamta Sharma Vs. Subash Sharma & Ors 2
9. In the cross examination, she stated that she had come to know about the factum of second marriage of Subhash Sharma with Kusum Lata in month of August-September, 2011. She stated that she had met with Kusum for the first time around 10 years back when she was employed in their company as an assistant. She stated that she was told about the second marriage of the accused no.1 by Kusum Lata herself. She denied the suggestion that she knew Babli and Uma beforehand and had never met them in person. She admitted that two voter I-card have been issued in her name on different addresses. She voluntarily stated that one voter I- card was made prior to her marriage. She denied the suggestion that it was she who had pressurized her husband to marry Kusum threatening to consume poison. She denied the suggestion that the DDA shed, Okhla was transferred in her name by way of GPA by her husband. She voluntarily stated that she had purchased the said property from her husband Subhash for a consideration of Rs.7,00,000/- in the year 2011. She admitted that she is residing in her matrimonial home, belonging to her father-in-law, and that her financial expenses are born by both her father and father-in-law. She stated that the certificate of marriage Mark X was handed over to her by Kusum in February, 2012. She denied the suggestion that she was aware of the relationship between her husband and Kusum before hand. She denied the suggestion that she had told her husband that she would not oppose the second marriage if the DDA shed was transferred in her name.
10.No other witness was examined and the Pre-charge evidence was closed Mamta Sharma Vs. Subash Sharma & Ors 3 by the statement of the complainant.
11.I have heard the arguments made by counsels for both the parties and perused the record carefully.
12.On the other hand, Ld. Counsel for accused persons has submitted that the accused persons have been falsely implicated. He has submitted that CW-1 has not made any allegation against accused Babli and Uma and no incriminating evidence has come on record against them. They were not even aware of the second marriage of the accused no.1.
13.Per Contra, Ld. Counsel for complainant has submitted that accused Babli is a real sister of Kusum and Uma is her friend and hence, they were well aware of the fact that accused no.1 is married to the complainant and they hatched a conspiracy against the complainant. Hence, all the 3 accused are liable to be tried for offence under Section 494/109/181/199 IPC read with Section 120B IPC and Section 34 IPC.
14.Let us first discuss the relevant provisions of law for the purpose of this case. The offence of bigamy is punishable under Section 494 IPC. Same is reproduced as under:-
"Section 494. Marrying again during 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."Mamta Sharma Vs. Subash Sharma & Ors 4
15.Further Section 199 states that whoever, in any declaration made or subscribed by him, which declaration any Court of Justice, or any public servant or other person, is bound or authorised by law to receive as evidence of any fact, makes any statement which is false, and which he either knows or believes to be false or does not believe to be true, touching any point material to the object for which the declaration is made or used, shall be punished in the same manner as if he gave false evidence.
16.In the case at hand, from statement of CW-1, coupled with the marriage card and marriage photographs of the complainant and the accused no.1 and the certificate of marriage of accused no.1, with Kusum Lata it appears that prima facie offence under Section 494 IPC is made out against the accused no.1.
17.Further, the accused no.1 had filed false affidavit before Arya Samaj Mandir, making a false declaration that he was unmarried at the time of his second marriage. Hence, the offence under Section 199 IPC is also made out against the accused no.1.
18.However, as far as accused no.3 and 4 i.e Uma and Babli are concerned, no incriminating evidence has come on record against them. There is no allegation made by the complainant against the said accused persons in her testimony dated 26.05.2015. There is no proof on record that the said accused persons were having knowledge that the accused no.1 was already married as on the date of his second marriage. In fact CW-1 has categorically admitted in her cross examination that she had never met Mamta Sharma Vs. Subash Sharma & Ors 5 Uma and Babli in person. She has stated that she knew Kusum Lata for last 10 years. However, she did not know Uma and Babli. Hence, no inference can be drawn against the accused Uma and Babli that they were known to the complainant at the time of the second marriage of accused no.1 and they had been participated in the criminal conspiracy of the second marriage of the accused no.1. Hence, the court is of the considered view that no offence is made out against the accused Uma and Babli. They both are accordingly discharged. Now, the case shall proceed only against the accused no.1 Subhash.
19. Be listed for framing of charge against accused Subhash under Section 494 IPC and 199 IPC on 25.07.2016.
(SAUMYA CHAUHAN) MM-07 (West) THC, Delhi 04.06.2016 Mamta Sharma Vs. Subash Sharma & Ors 6