Bombay High Court
Janabai Narayan Kale vs Narayan Hari Kale And Ors. on 14 March, 1990
Equivalent citations: I(1992)DMC9
JUDGMENT I.G. Shah, J.
1. Original complainant in Criminal Case No. 6373 of 1977 on the file of J.M.F.C. Solapur has filed this appeal after being granted leave to appeal to challenge the order of acquittal of accused Nos. 1 and 2 of the offences punishable under Section 496 r.w. 34 and 495, 496 and 420 of the Indian Penal Code.
1. Briefly stated the facts giving rise to this appeal are as under :-
The present appellant filed a private complaint against the present respondents Nos. 1 and 2 (Original Accused) contending that the accused No. 1 is a police constable residing at Solapur and the accused No. 2 is his mother; that the complainant was unmarried and the accused No. 1 pretended to marry her and thereafter their engagement took place at Solapur; that the complainant is the only daughter of her parents and therefore the estate of her parents was with her and she had cash of Rs. 10,000 in her account in post office and she also had some gold, that with the intention to exploit the complainant, the accused No. 1 told her that he would marry her and accordingly he married her according to Hindu rites at Gangapur in the month of Ashad in the year 1963; that after the marriage ceremony, he returned with the complainant to Solapur and started residing with her; that after about a year, the complainant gave birth to a daughter Mahananda out of the said wedlock; that after some days, the accused No. 1 took away some ornaments of the complainant saying that he was suspended and he needed some money as there was a charge of theft of pay on him at Pandharpur and in this manner the accused exploited her of Rs. 3,000 that after some days, the accused No. 1 was transferred to Rangri where he was suspended ultimately due to some incident: that the thereafter wrote letters to the complainant and made her believed that she was married to him; that in January 1969 accused No. 1 was not coming to her house; that after some days, ultimately he came to her house and for building a house he made her withdraw an amount of Rs. 10,000 from the post office and he used the said amount for building his own house and then transfered the said house to her mother and therefore the complainant stated demanding the return of her money but the accused did not do so and he did not also come to her house and later on, inquiry she came to know that he was already married and had children from the said marriage before he married her. She also claimed that he had also some connections with a teacher Dhrupabai. Having Jearnt about this, she went to the accused No. 1 and quarrelled with him but he assured her that she was the only wife and he would never forget her. She also claimed that thereafter again when the complainant started demanding money, he started telling her that he had no relations with her and he not know her. She also made various other allegations of threats. However, the main complaint is that the accused No. 1 had got married with her with the intention to exploit her money by deceiving her and that he had got married to her though he was married earlier and his marriage with the first wife was subsistence and therefore she claimed that the accused have committed the offence punishable under Sections 420, 417, 493, 495, 506 and 496 of the Indian Penal Code. The learned Magistrate, however, issued process under Sections 495 and 496 of the Indian Penal Code.
2. After the complainant tendered her evidence, charge under Section 494 r.w. 34 of the Indian Penal Code was framed against accused Nos. 1 and 2 and charge under Sections 495, 496 and 420 of the Indian Penal Code was framed against the accused No. 1 and on completion of the trial, the learned Magistrate acquitted both the accused of the charges framed against them. Being aggrieved by the said order of acquittal, the complainant has come is appeal to this Court.
3. It appears that the learned Magistrate found that in respect of the offence under Section 494 r.w. 34 and 495 and 496 of the Indian Penal Code he had no jurisdiction to try the case as the offence was committed at Gangapur which was beyond the jurisdiction of his Court. The basis for this was that the alleged second marriage, even according to the complainant, took place at Gangapur which is not within the jurisdiction of Solapur. The learned Magistrate also found that the complainant failed to prove the offence under Section 420 of the Indian Penal Code and therefore the learned Magistrate acquitted the two accused.
4. Now it does appear that as far as the offences under Sections 494 r.w. 34 and 495 of the Indian Penal Code are concerned, the trial Court was in error in holding that it had no jurisdiction. The learned Magistrate has referred to the provisions under Section 177 of the Code of Criminal Procedure to hold that the offence is to be inquired into and tried by the Court within whose local jurisdiction it was committed. The learned Magistrate has lost sight of the fact that Section 182(2) of the Code of Criminal Procedure provides that any offence punishable under Section 494 or 495 of the Indian Penal Code may be inquired into or tried by a Court within whose local jurisdiction the offence was commited or the offender last resided with his or her spouse by the first marriage or the wife by the first marriage has taken up permanent residence after the commission of the offence. No. doubt as far the clause "or the wife by the first marriage has taken up permanent residence after the commission of the offence" is concerned, it has been introduced in 1978 by the Act 45 of 1978 and as the present complaint is filed in 1975 the said clause may not be applicable. But the earlier part of the said Section definitely become applicable by the introduction of the Code of Criminal Procedure, 1973. The present complaint is filed in 1975. No doubt, it is in respect of an offence which is alleged to have taken place much prior to 1973 but that would not affect the position at all. Once Section 182(2) of the Code of Criminal Procedure was incorporation in the Code of Criminal Procedure, 1973, investing jurisdiction on the Courts where the offender last resided with his or her spouse by the first marriage, in addition to the Court within whose jurisdiction the offence was committed, would definitely give jurisdiction to the Court where the offender last resided with his or her spouse by the first marriage. In the present case, there does not appear to be any dispute about the fact that the accused resided with his first spouse within the District of Solapur and therefore the Court of J.M.F.C, Solapur would have jurisdiction to try the offences under Sections 494 and 495 of the Indian Penal Code. On behalf of the respondent No. 1, it was tried to be contended before me that the wife by the first marriage could definitely institute a case against the husband under Section 494 of the Indian Penal Code in the Court which has jurisdiction over the place where the husband last resided with the first wife. But the said portion or the clause would not be applicable to Section 495 of the Indian Penal Code. The said argument cannot be accepted as sustainable. It was tried to be contended before me also that if the said clause was to be made applicable for both Sections 494 and 495 of Indian Penal Code, then instead of word "or" between Sections 494 and 495 "and" would have been used. This argument also is not sustainable because in that event the offence would be required to fall both under Sections 494 and 495 of the Indian Penal Code and such a situation is impossible. On the contrary, it clearly appears from the wording of the said Section 182(2) of the Code of Criminal Procedure that the legislature wanted to provide that the jurisdiction should be invested with the Court where the offender last resided with her or his spouse by the first marriage in addition to the Court within whose local jurisdiction the offence was committed, thereby not requiring the person aggrieved by the second marriage to go to the remote place and file a complaint against the offender. The purpose and object of introducing this provision is clear and the legislature definitely wanted to make it easier for the aggrieved party to institute a criminal case against such offender even if offender has got married to the second wife at a different place then the place of his usual residence. The wording of the Section clearly indicates that even for the offence under Section 495 of the Indian Penal Code the said facility was thought of to be extended to some extent. For the purposes of Section 495 of the Indian Penal Code, it would normally be the second wife who would be aggrieved on the second as marriage in concealed from the second wife and by such concealment the offender desires to get married second time. Under these circumstances, for the jurisdiction to try the offence under Section 495 of the Indian Penal Code, also it must be held that the Court where the offender last resided with him or her Spouse by the first marriage would have jurisdiction to try the offence. Hence the view taken by the learned J.M.F.C that he had no jurisdiction to try the offence under Sections 494 and 495 of the Indian Penal Code in the present case must be held to be erroneous. As far as the offence under Section 496 is concerned, no doubt as Section 182(2) of the Code of Criminal Procedure does not provide for the offence under Section 496 of the Indian Penal Code, it can be only tried by the Court within whose jurisdiction the offence has taken place.
5. Now, therefore, it would be necessary to consider as to whether in the present case the offence under Section 494 and also 495 of the Indian Penal Code could be said to have taken place or not. For the purposes of Section 495 of the Indian Penal Code, the second marriage must be solemnised as required by the Hindu Law as the parties are admittedly Hindus. In the present case, there is no evidence that "Datta Homa," and "Saptapadi" were performed for the marriage. Performance of "Dattu Homa" and "Saptapadi" are normally essential rituals which must be performed. No doubt by custom there could variation and the said essential ceremonies of "Datta Homa," and ''Saptapadi" could also be left out if abrogated, but for that purpose the complaint must lead specific evidence that by custom in that particular community or casts, the performance of "Datta Homa" and "Saptapadi" rituals have been abrogated and the marriage performed without the said rituals could not be considered as a valid marriage in the present case, there is only a bald statement made by Parvatibai P. W. 2, the mother of the complainant, that "there are the only rites in our marriage". She speaks about what rites were performed at the time of marriage of the accused No. 1 with the complainant and thereafter she made a statement that those were the only rites in their marriage. She has also stated that she is shepherd by cast. Now, therefore, it is also necessary to consider as to whether the said statement is sufficient to establish that by customs the rites of "Datta Homa" and "Saptapadi" which are essentials of a Hindu marriage could be said to have been abrogated. Now even for the purposes of establishing that by custom certain rites which were ordinarily required to be performed for the purpose of Hindu marriage are abrogated, the witness ought to have stated about such abrogation by custom. The said statement which I have stated earlier cannot be taken to mean that the witness wanted to state that by custom the said rites which were ordinarily required for the purposes of solemnisation of a Hindu marriage have been abrogated. The learned Additional Public Prosecutor appearing for the State invited my attention to a decision reported in Bhaurao Shankar Lokhanda v. State of Maharashtra, and tried to contend that the said decision of the Supreme Court lays down that the statement made by the mother of the complainant in her deposition to which I have referred to earlier, could be considered as sufficient to prove that the said rites of "Datta Homa" and Saptapadi" were not necessary rites as they were abrogated by custom in the community of the complainant and the accused. Reliance is placed on the observation in the said decision of the Supreme Court wherein it has been laid down that the two ceremonies essential for the validity of the marriage could be abrogated by custom and the evidence that the ceremonies which were actually carried out were the only ceremonies required for the valid marriage would be sufficient evidence to hold that the marriage was legally solemnised. The ratio that has been laid down by the said decision is that the two ceremonies essential to the validity of the marriage could definitely be abrogated by the customs but that parties must lead evidence to that effect. In the present case, the evidence that in led by the complainant through her mother. Parvatibai P.W. 2 to which I have referred to earlier, cannot necessarily mean that by custom the said two ceremonies which are essential for a Hindu marriage were abrogated. Mere statement that those are the only rites for their marriage, cannot mean that by custom those were the only rites which were required to be performed for solemnisation of a marriage and the other rites stood abrogated. Apart from this, even in the complaint there is no statement on record that the marriage was performed by rites which were adopted by custom in the community. Under these cirsumstances, the evidence that has been led by the complainant is not sufficient to establish that the second marriage, which the accused No. 1 performed with the complainant, was validly solemnised marriage. There is no dispute that for the offence under Section 494 of the Indian Penal Code the marriage must be validly solemnised marriage and, thereafter, the complainant has failed to establish the ingredients of the offence punishable under Section 494 of the Indian Penal Code. For the offence under Section 495 of the Indian Penal Code also, the complainant must establish that the offence under Section 494 of the Indian Penal Code was committed as the wordings of the said Section clearly show that whoever commits the offence defined in the last preceding Section, ie. Section 494, having concealed from the person with whom the subsequent marriage in contracted, the fact of the former marriage, shall be punished etc. Therefore, the complainant must first establish that the accused No. 1 had committed the offence under Section 494 of the Indian Penal Code. If the offence under section 494 is not proved, then Section 495 has no application at all. As far as the offence under Section 496 is concerned, the trial Court definitely could not have jurisdiction as the said Section is not included in Section 18 (2) of the Code of Criminal Procedure. The offence under Section 496 of the Indian Penal Code therefore must be tried in the Court in whose jurisdiction the offence took place.
6. As far the offence under Section 420 of the Indian Penal Code is concerned, it must be stated that there is absolutely no case made out in that respect. The marriage is alleged to have taken place in 1962 and after about 10 years of the marriage the accused No. 1 is alleged to have taken the amount of Rs. 10,000 which was kept by the wife in her postal account and it is claimed that she was persuaded to take out the sard amount to give it to him for the purposes of building a house. Now the case of the complainant is that when the accused No. 1 married the complainant, he had married her with the intention of getting the said amount of Rs. 10,000 which she had in her postal account. It is difficult to accept that in 1962 when he got married to her, he bad any intention of cheating her in the manner which in tried to be suggested. Under these circumstances, the view taken in respect of the said offence by the Trial Court cannot be said to be erroneous.
7. In the result the ultimate result is that the trial Court's order of acquittal passed in favour of the accused cannot be considered as erroneous and, therefore, the same will have to be confirmed though on the point of jurisdiction the lower Court, was in error. Hence the appeal stands dismissed.