Delhi District Court
Deepa Sharma vs Lalit Sharma on 7 January, 2013
1
IN THE COURT OF MS. ILLA RAWAT : ADDL. SESSIONS JUDGE
(NORTHWEST)01, ROHINI:DELHI
(Crl. Revision No. : 12/12)
Unique Case ID No. : 02404R0169422012
Complaint case No. 41/1/12
PS : Adarsh Nagar
Deepa Sharma ... Revisionist
D/o Sh. Satish Kumar Sharma
R/o 249/4, Jawahar Nagar,
Gurgaon, Haryana.
Vs.
Lalit Sharma ... Respondent
S/o Sh. Damodar Lal Sharma
R/o 136/9/1, Gali no. 16,
Ablock, Sant Nagar, Burari,
Delhi110084
Date of institution of case 03.07.2012
Date on which, order have been reserved 04.01.2013
Date of pronouncement of order 07.01.2013
ORDER:
1. The present revision petition has been filed on behalf of the revisionist Deepa Sharma against the impugned order dated 13.04.2012 passed by the Ld. Trial Court in complaint case no. 41/1/12 titled as 'Lalit Sharma vs. CR no. 12/12 : Deepa Sharma vs. Lalit Sharma : Page 1 of 9 2 Deepa Sharma & Anr.", whereby ld. Trial court ordered to summon the revisionist for the offence punishable u/s 494 IPC.
2. Brief facts necessary for the disposal of the present revision are that complainant/respondent filed a complaint u/s 156 (3) Cr.P.C read with Section 190 and 200 Cr.P.C tilted as "Lalit Sharma vs. Deepa Sharma and Anr.", wherein he prayed that a criminal case u/s 494, 109, 120B/34 IPC be registered against his wife Deepa Sharma and her father Satish Kumar Sharma.
3. Pursuant to filing of the said complaint, an action taken report was called from S.H.O of concerned PS. After consideration of the said report, the learned trial court listed the matter for presummoning evidence. The complainant/respondent Lalit Sharma examined himself as CW1 and closed presummoning evidence. After consideration of the material on record, evidence and arguments advanced on behalf of complainant/respondent Lalit Sharma, the learned trial court was of the opinion that there was sufficient material on record to summon accused no. 1 i.e. Smt. Deepa Sharma, wife of complainant/respondent, for offence punishable u/s 494 IPC and accordingly, vide order dated 13.04.2012, issued summons to her for appearance before the court for the said offence.
CR no. 12/12 : Deepa Sharma vs. Lalit Sharma : Page 2 of 9 3
4. Aggrieved by the impugned order, accused no. 1/petitioner has filed the present appeal, wherein she has challenged the impugned order inter alia of the ground that impugned order is liable to be set aside as respondent/complainant Lalit Sharma approached the trial court with unclean hands and suppressed the real facts with a view to take advantage of his own wrong and that, he has made yet another attempt to harass the petitioner by thrusting unwanted litigation upon her and indulging in her character assassination by alleging that she has two/three husbands. The impugned order has also been challenged on the ground that respondent/complainant does not have right to file complaint u/s 494 IPC, since as per his own averments, the first marriage of petitioner is still existing and thus, he is an abettor rather than an aggrieved person. Impugned order has further been challenged on the ground that respondent/complainant was well aware of the factum of the first marriage of the petitioner and married her and enjoyed marital life with her for about two years and that a son was born from their wedlock and that when, their relationship turned sour, complainant/respondent took shelter of provisions of Section 494 IPC. It is lastly contended that petitioner shall suffer irreparable loss, injury and unwarranted harassment, if the impugned order passed by learned Magistrate is not satisfied and has accordingly prayed that impugned order dated 13.04.2012 be set aside.
CR no. 12/12 : Deepa Sharma vs. Lalit Sharma : Page 3 of 9 4
5. Notice of revision petition was issued to respondent, who appeared before the court with his counsel. No reply to the petition has been filed and only oral arguments have been advanced on behalf of respondent.
6. I have heard the arguments on revision put forward by the ld. Counsel for the petitioner/revisionist and the counsel for the complainant/respondent and have carefully gone through the record of the case as well as TCR.
7. Learned counsel for the petitioner has reiterated the grounds taken in the revision petition to contend that the impugned order is liable to be set aside. He has relied upon the judgment dated 19.01.1979 in case of Lingari Obulamma v. L. Venkata Reddy & Ors., in Crl. A. No. 339 of 1975 passed by the Hon'ble Supreme Court in support of his contention that petitioner could not have been summoned by the court u/s 494 IPC. On the other hand, learned counsel for respondent has contended that there is no infirmity in the impugned order passed by the learned trial court.
8. I have heard the rival contentions of the parties and perused the record carefully.
CR no. 12/12 : Deepa Sharma vs. Lalit Sharma : Page 4 of 9 5
9. For constituting an offence punishable u/s 494 IPC, the following essential ingredients must exist :
(a) the accused spouse must have contracted the first valid marriage ;
(b) the accused spouse must have also contracted a second marriage when the previous valid marriage was subsisting, meaning thereby that there must be, at the time of second ceremony of marriage, a previous valid subsisting marriage, and
(c) both marriage must be valid in the sense that the necessary ceremonies required by the personal law, governing the parties, had been duly performed.
In the absence of any of the said ingredients, no offence under this section would be committed i.e, if the first marriage is null and void, there would be no offence of bigamy in contracting a second marriage.
10. It is open for a person facing charge u/s 494 IPC to take a defence that he/she lacked necessary Mens Rea for the commission of offence. An honest belief on reasonable grounds as to invalidity of previous marriage or the same having been declared void by a court of competent jurisdiction or any prevalent custom or practice or an honest belief on reasonable grounds that the spouse is dead, are good defence to charge of bigamy. However, any such defence is required to be proved through proper and reasonable inquiry. CR no. 12/12 : Deepa Sharma vs. Lalit Sharma : Page 5 of 9 6
11. In the present case, matter is still at an initial state. The petitioner would have ample opportunity to put her defence to the witnesses of the respondent at appropriate stage and ultimately, resultant conviction or acquittal of the accused, as the case may be, would depend on the quantity of evidence led by the parties and documents placed on record by them. The fact that the petitioner has been summoned for offence punishable u/s 494 IPC, does not mean per se that she has been held guilty for the said offence.
12. Coming to the contention that respondent could not have filed a complaint u/s 494 IPC being a coabettor, in a similar circumstances, wherein the second wife filed a complaint against her husband u/s 494 IPC read with Section 495 IPC, for having married her by concealing factum of having a living wife, the Hon'ble Supreme Court in case of A. Subhash Babu vs. State of A.P. & Anr., in Crl. Appeal no. 1428 of 2011 (Arising out of S.L.P (Crl.) no. 6349 of 2010) decided on 21st of July 2011, held that to hold a woman, with whom, second marriage is performed, is not entitled to maintain a complaint u/s 494 IPC, though she suffers legal injuries would be height of perversity. It has also been held that : CR no. 12/12 : Deepa Sharma vs. Lalit Sharma : Page 6 of 9 7 "............ The reference to Section 494 IPC in Section 495 IPC, makes it clear that Section 495 IPC is extension of Section 494 IPC and part and parcel of it. The concealment spoken of in Section 495 IPC would be from the woman, with whom the subsequent marriage is performed. Therefore, the wife with whom the subsequent marriage is contracted after concealment of former marriage, would also be entitled to lodge complaint for commission of offence punishable under Section 495 IPC. Where second wife alleges that the accused husband had married her according to Hindu rites despite the fact that he was already married to another lady and the factum of the first marriage was concealed from her, the second wife would be an aggrieved person within the meaning of Section 198 Cr.P.C. If the woman with whom the second marriage is performed by concealment of former marriage is entitled to file a complaint for commission of offence under Section 495 IPC, there is no reason why she would not be entitled to file complaint under Section 494 IPC more particularly when Section 495 IPC is extension and part and parcel of Section 494 IPC...." CR no. 12/12 : Deepa Sharma vs. Lalit Sharma : Page 7 of 9 8
13. Although the above mentioned observations were made by the Hon'ble Supreme Court, where the person aggrieved was a wife, the analogy would be fully applicable in case like present one, where aggrieved person is second husband.
14. The perusal of the impugned order shows that the learned trial court has not only considered the statement given by the complainant/respondent, but also the statement made by petitioner herself in another matter pending between the parties i.e. Petition u/s 11 Hindu Marriage Act, wherein petitionerwife, who was the respondent in the said petition, had admitted factum of her first marriage, with previous husband and second marriage with the respondent as also the fact that her previous marriage had been dissolved by a panchayat held on 18.04.2004 and not by a competent court of law.
15. In view of these observations, reflected from perusal of the impugned order and the detailed discussion on Section 494 IPC by Hon'ble Apex Court in case of A. Subhash Babu (supra), I find no illegality or infirmity in the impugned order passed by the learned trial court. As far as the defence taken by the petitioner is concerned, including knowledge attributed to respondent qua CR no. 12/12 : Deepa Sharma vs. Lalit Sharma : Page 8 of 9 9 her first marriage, she shall get sufficient opportunity to put the same to the respondent at appropriate stage of proceedings/trial.
16. Thus, in view of the above discussion and observations, I am of the considered opinion that there is no illegality or infirmity in the order dated 13.04.2012 by the ld. Trial Court. Accordingly, the said order dated 13.04.2012, whereby ld. Trial court directed to summon the revisionist/petitioner for the offence punishable u/s 494 IPC is hereby upheld. The present revision filed on behalf of the revisionist/petitioner is without merit, hence dismissed.
TCR along with copy of this judgment be sent back to the ld. Trial Court.
Revision file be consigned to the record room.
(Announced in the open ) (Illa Rawat)
(Court on 07.01.2013) Addl. Session Judge
(NorthWest)01
Rohini/Delhi
CR no. 12/12 : Deepa Sharma vs. Lalit Sharma : Page 9 of 9