Punjab-Haryana High Court
Ravinder Singh Dhillon vs Mukhtiar Singh on 23 January, 1996
Equivalent citations: II(1996)DMC120
Author: K.S. Kumaran
Bench: K.S. Kumaran
JUDGMENT V.K. Bali, J.
1. The question that has been referred to a larger Bench by a learned Single Judge of this Court (brother K.S. Kumaran, J.) for an authoritative decision is as to whether a complaint under Section 494 of the Indian Penal Code against the husband can be filed by the aggrieved wife only or whether it can be filed at her instance and on her behalf by the father of the wife or by any other person/persons mentioned in Proviso (c) to Sub-section (1) of Section 198 of the Code of Criminal Procedure.
2. The necessity of referring the matter to a larger Bench had arisen as in Resham Singh v. Kartar Singh, 1983 (2) RCR 497, it was held by a learned Single Judge of this Court that such a complaint at the instance of the father was wholly incompetent in view of Section 198 of the Code of Criminal Procedure as also in another decision again rendered by the learned Single, Judge in Surinder Kaur @ Chhindo v. Bhag Singh, 1990 (2) RCR 264, where complaint under Section 494 of the Indian Penal Code was not filed by the wife against her husband but by her father, the proceedings initiated on the complaint by the father were quashed. In Surinder Kaur's case (supra) no reference to the provisions of Section 198 of the Code of Criminal Procedure especially to the Proviso (c) to Sub-section (1) of Section 198 was made. In Resham Singh's case (supra), there was, of course, a reference to Section 198 of the Code of Criminal Procedure, but Proviso (c) to Sub-section (1) of Section 198 was not noticed.
3. There is no necessity to go at all to the facts of the case. Suffice, however, it to mention that respondent Mukhtiar Singh filed a complaint against the petitioner and seven others under Section 494 read with Section 149 of the Indian Penal Code on the allegations that his daughter Amarjit Kaur was married to the petitioner and while the marriage was still subsisting, the petitioner had once again contracted a second marriage with Karamjit Kaur on 11th December, 1988. Judicial Magistrate 1st Class after recording preliminary evidence, came to the conclusion that there were sufficient grounds to proceed against the petitioner and four others and consequently summoned them. The petitioner filed a petition under Section 482 of the Code of Criminal Procedure for quashing of the complaint and the aftermath thereof i.e. Summoning order. It is while hearing of this petition, for quashing that the Counsel representing the petitioner contended that complaint instituted by the respondent herein i.e. father of the first wife was wholly incompetent. Other points in support of the petition to quash the complaint and the summoning order were also taken but the matter has been referred to a larger Bench for determination of the point noted above.
4. As the answer to the question posed for determination by a larger Bench is basically dependent upon the provisions contained in Proviso (c) of Sub-section (1) of Section 198 of the Code of Criminal Procedure, the same needs immediate notice. It reads as follows :
(c) Where the person aggrieved by an offence punishable under (Section 494 or Section 495) of the Indian Penal Code (45 of 1860) is the wife, complaint may be made on her behalf by her father, mother, brother, sister, son or daughter or by her father's or mother's brother or sister (or with the leave of the Court, by any other person related to her by blood, marriage or adoption)."
5. It is true that Sub-section (1) of Section 198 states that no Court shall take cognizance of an offence punishable under Chapter X of the Indian Penal Code (45 of 1860) except upon a complaint made by some person aggrieved by the offence and it is primarily the first wife who is wronged on account of her husband having solemnised second marriage during subsistence of his first marriage but there are exceptions to the rule provided under Section 198 of the Code of Criminal Procedure itself. Chapter XX of the Indian Penal Code deals with the offences relating to marriage. The said chapter consists of Sections 493 to 498. Section 493 is with regard to cohabitation caused by a man deceitfully inducing a belief of lawful marriage whereas Section 494 deals with marrying again during lifetime of husband or wife. Section 495 deals with the same offence with concealment of former marriage from person with whom subsequent marriage is contracted and Section 496 is with regard to marriage ceremony fraudulently gone through without lawful marriage. Section 497 deals with adultery whereas Section 498 deals with enticing or taking away or detaining with criminal intent a married woman. Whereas Provisos (a) and (b) of Section 198 deal with the whole chapter i.e. Chapter XX of the Indian Penal Code and permit persons other than aggrieved to file complaint, Proviso (c) deals with Sections 494 and 495. Concededly, it is the first wife who is the person aggrieved of an offence punishable under Section 494 or 495 and that being so, the complaint can be made not only by her father but by her mother, brother, sister, son or daughter or by her father's or mother's brother or sister or any of her relations by blood, marriage or adoption with the permission of the Court. Proviso (c) of Sub-section (1) of Section 198 of the Code of Criminal Procedure, thus, in our view entitles all the relations referred therein to successfully maintain a complaint under Section 494 or 495 of the Indian Penal Code. It is true that in two decisions of this Court in Resham Singh's case (supra) and Surinder Kaur's case (supra), learned Single Judges dealing with the matter held to the contrary but it is conceded by the learned Counsel for the petitioner that provisions contained in Proviso (c) to Sub-section (1) of Section 198 were not brought to the notice of the learned Judges dealing with the matters referred to above. The language of the statute being clear and unambiguous, it has to be held that a complaint under Section 494 of the Indian Penal Code against husband can be filed by the father of the wife or by any other person mentioned in Proviso (c) of Sub-section (1) of Section 198 of the Code of Criminal Procedure and as such the complaint is maintainable. It is also to be consequently held that it is not the wife alone who can file and maintain such a complaint. Contrary view expressed in Resham Singh's case (supra) and Surinder Kaur's case (supra) in our view is not correct and therefore, needs to be over-ruled. So ordered.
6. The matter shall now go to the learned Single Judge for proceeding in the matter on the other points that are said to have been taken in support of the petition under Section 482 of the Code of Criminal Procedure for quashing the complaint and the summoning order. The office shall fix the date for that purpose and intimate the same to the Counsel representing the parties.