Karnataka High Court
Smt Pavithra vs Kavitha M K on 21 March, 2022
Author: K.Natarajan
Bench: K.Natarajan
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 21ST DAY OF MARCH, 2022
BEFORE
THE HON'BLE MR. JUSTICE K.NATARAJAN
CRIMINAL PETITION No.5334 OF 2017
BETWEEN
SMT PAVITHRA
W/O SANTOSH KUMBAR,
AGED 24 YEARS,
RESIDENT OF WARD NO.7,
HUCHANAGOUDRA OANI,
BETAGERI TALUK,
GADAG DISTRICT. ... PETITIONER
(BY SRI N G PHADKE, ADVOCATE AND
SRI VIKRAM PHADKE, ADVOCATE)
AND
KAVITHA M K
D/O HANUMANT HAPPA
AGED 25 YEARS,
RESIDENT OF LEFT SIDE OF 5TH CROSS,
HOSAMANE,
BHADRAVATHI
SHIVAMOGGA DISTRICT.
... RESPONDENT
(BY SRI UMESH MOOLIMANI, ADVOCATE FOR
SRI S V PRAKASH, ADVOCATE (VIDEO CONFERENCE))
THIS CRIMINAL PETITION IS FILED UNDER SECTION 482
OF CR.P.C PRAYING TO QUASH THE ENTIRE PROCEEDINGS IN
C.C.NO.169/2016 PENDING ON THE FILE OF III ADDITIONAL
CIVIL JUDGE AND J.M.F.C., BHADRAVATHI IN PCR NO.382/2015
FOR THE OFFENCES PUNISHABLE UNDER SECTIONS 420 AND
494 OF IPC.
2
THIS CRIMINAL PETITION COMING ON FOR ADMISSION
THROUGH VIDEO CONFERENCING THIS DAY, THE COURT MADE
THE FOLLOWING:
ORDER
This petition is filed by the petitioner-accused No.2 under Section 482 of Cr.P.C. for quashing the criminal proceedings in C.C.No.169/2016 pending on the file of III Additional Civil Judge and JMFC, Bhadravathi for the offences punishable under Sections 494 and 420 of IPC having taken cognizance based upon the private complaint filed by respondent herein.
2. Heard learned counsel for the petitioner and learned counsel for the respondent.
3. The case of the petitioner is that the complainant married accused No.1-Santhosh Kumbar on 24.07.2013 and had a female child aged about 1 year 2 months. Subsequently, accused Nos.1 and 2 said to have married on 04.06.2015 and registered their marriage in Sub-Registrar Office, Gadag on 12.06.2015 knowingly, about the marriage of the complainant along with accused 3 No.1. Therefore, the private complaint came to be filed against accused Nos.1 and 2 in P.C.R.No.382/2015. Subsequently, the sworn statement of the complainant and other witnesses have been recorded and the learned Magistrate took cognizance of the said offences against accused Nos.1 and 2 which is under challenge.
4. Learned counsel for the petitioner strenuously contended that the offence under Section 494 of IPC attracts only against accused No.1 who is the husband of the complainant and not against this petitioner who is said to be second wife. Of course, she is not aware about the first marriage. She has filed a civil suit which came to be dismissed and the appeal is also pending before this Court. Hence prayed for quashing the criminal proceedings against the petitioner. The learned counsel has further contended that even in the sworn statement of the complainant, she has not stated anything about this petitioner with regard to taking action, knowledge of this 4 petitioner for having married accused No.1 and cheating the complainant.
5. Per contra, learned counsel for the respondent has objected the petition and contended that the offence under Section 420 of IPC would attract against this petitioner. This petitioner has filed civil suit for declaring herself as the wife of accused No.1 which came to be dismissed. Such being the case, she has to face the trial and she has to take the defence in trial and the court cannot quash the same in preliminary stage. Hence, prayed for dismissing the petition.
6. Having heard the arguments and on perusal of the records, the dispute in respect of the fact that whether the petitioner is legal wedded wife which has been decided by the Civil Court in O.S.No.10/2015 and the judgment was delivered by dismissing the suit filed by this petitioner declaring that the complainant is the legally wedded wife and the petitioner is not a legally wedded wife vide judgment dated 19.08.2017. Of course an appeal is filed 5 before this Court and pending in M.F.A.No.103352/2017 of Dharwad Bench. Once, the Civil Court having competent jurisdiction issued a finding in a civil suit of declaration that is binding on the criminal court, that means the court refused to declare the petitioner as the wife of accused No.1. That means, the complainant said to be declared as wife of accused No.1. However, the provision of Section 494 of IPC reads as under:
"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".
On bare reading of the provision of Section 494 of IPC which says that the punishment shall be provided only against the husband or wife who got second marriage by suppressing the previous marriage. Here in this case, the allegation against accused No.1 is that he has married this 6 petitioner in the year 2015 by suppressing the earlier marriage which was held in the year 2013. Though the complainant has stated that accused Nos.1 and 2 in spite of having knowledge about the previous marriage, they married once again in the year 2015, but no such document produced by her in the sworn statement or while filing the complaint. Of course, accused No.1 who is having full knowledge about his previous marriage with this complainant and having a daughter. He has married accused No.2 and absolutely, there is no document or material produced to show that she is having knowledge and with an intention to cheat the complainant, this petitioner-accused No.2 has married accused No.1. Even the ingredients of Section 420 of IPC will not attract against this petitioner. That apart, even in the sworn statement, the complainant has not stated anything about this petitioner as she wants compensation and action against accused No.1. Such being the case, conducting criminal proceedings against this petitioner-accused No.2 who is said to be the second wife of accused No.1 is not 7 sustainable which is abuse of process of law and it is liable to be quashed.
7. Accordingly, the criminal petition is allowed.
8. The criminal proceedings against petitioner herein-accused No.2 in C.C.No.169/2016 pending on the file of III Additional Civil Judge and JMFC, Bhadravathi is hereby quashed.
Sd/-
JUDGE GBB