Delhi District Court
Utkarsh Soni vs Richa Soni Etc on 22 August, 2024
IN THE COURT OF MS. SHEFALI SHARMA,
ADDITIONAL SESSIONS JUDGE-02,
NORTH DISTRICT, ROHINI COURTS, DELHI
In the matter of:
Criminal Revision No. 146/2024
Utkarsh Soni
S/o Sh. Lal Chand Soni
Medical Officer Incharge
Office at:
Aam Aadmi Polyclinic
Rani Bagh, Near Haryana Maitri Bhawan,
Bhagwan Mahavir Hospital,
GNCTD Pitampura, Delhi - 110034.
....Revisionist
VERSUS
Richa Soni
D/o Sh. Ashok Kumar Soni
R/o H.No.12BD, Gayatri Apartment,
Rohini, Sector 9, Delhi.
Also at:
Flat No.35D, Gayatri Apartment,
Sector - 9, Rohini, Delhi.
Also at:
H.No. 145/4, Shastri Nagar,
Opp. Playground, Indore Road,
Ujjain, Madhya Pradesh.
Also at:
H.No. 35A, Sai Nath Colony,
Ujjain, Madhya Pradesh.
....Respondent
Date of Institution : 28.05.2024
Conclusion of arguments : 21.08.2024
Date of Order : 22.08.2024
Digitally signed
by SHEFALI
SHEFALI SHARMA
SHARMA Date:
2024.08.22
CR No. 146/2024 18:06:26 +0530
Utkarsh Soni Vs. Richa Soni
Page 1 of 9
ORDER
1. Present revision petition filed under Section 397 Cr.P.C. is preferred by the revisionist against impugned order dated 24.01.2024 passed by the Ld. MM, whereby the revisionist had been summoned for the offence u/s 494 IPC after adducing of the complainant's pre summoning evidence.
2. It is submitted by Ld. Counsel for the revisionist that the ld. MM without appreciating facts of the case has wrongly summoned the revisionist as there are no specific allegations against the revisionist and whatever allegations levelled are vague and false in nature.
3. On the contrary, it is submitted by ld. Counsel for the respondent that there is no infirmity in the impugned orders passed by Ld. MM as there are sufficient material available on record to summon them in the present case.
4. Arguments have been heard at length from Mr. Raj Kumar Solanki, ld. Counsel for the revisionist and from Ms.Vibhuti Zibbu, ld. Counsel for the respondent and perused the record.
FINDINGS
5. As regards the powers of Revision U/s 397 Cr.P.C Digitally signed by SHEFALI SHEFALI SHARMA Date: SHARMA 2024.08.22 CR No. 146/2024 18:06:37 +0530 Utkarsh Soni Vs. Richa Soni Page 2 of 9 the Ho'ble Supre Court in the latest judgment dated 17.02.2022 in the case of Directorate of enforcement Vs. Gagandeep Singh 2022 SCC online Delhi 514 has reiterated the law that:
"the provision of revision in Cr.P.C. suggests that the court shall limit itself to the findings sentence or order pass by the subordinate court, against which the revisionists is seeking relief before the court concerned and shall not go beyond the analysis and observations made by the subordinate court."
Section 397 Cr.P.C. unequivocally states that the High Court and Sessions Courts which is exercising its revisional jurisdiction shall apprise itself solely of the question of correctness, legality and propriety of the order of the subordinate court.
The Hon'ble Supreme Court in Directorate of enforcement Vs. Gagandeep Singh (supra) again emphasised that:
"in its revisional jurisdiction court will not proceed into the enquiry of the records, documents and other evidence in consideration before the Trial Court but shall constrain itself to the findings of the lower court in the impugned order and to the question whether there is any patent, illegality, error apparent on record or incorrectness."
At the very outset, it is pertinent to reproduce the impugned order. The same is as under :
"24.01.2024 Present: Ld. Counsel for complainant along with complainant.
Arguments heard on the point of summoning.
Digitally signed by SHEFALI SHEFALI SHARMA CR No. 146/2024 SHARMA Date: 2024.08.22 18:06:47 +0530 Utkarsh Soni Vs. Richa Soni Page 3 of 9
There is sufficient material on record to summon accused Utkarsh Soni for the offence punishable under Section 494 IPC. Accordingly, I hereby take cognizance of the said offence against accused Utkarsh Soni.
(sd/-)"
6. I have perused the pre summoning evidence. No reason has been afforded by Ld. Magistrate as to on what basis he came to the conclusion that a prima facie case under Section 494 IPC is made out.
7. It is an admitted fact that the marriage of the revisionist was solemnized with respondent on 14.06.2011 according to Hindu rites at Ajmer, Rajasthan. No issue was born from the said wedlock.
8. It is the case of the revisionist that on 26.07.2016, the respondent willfully deserted the company of the revisionist alongwith a third person and flew from Delhi to Indore and then to Ujjain. The revisionist tried to contact the respondent but she refused for the same.
Infact, the respondent's father himself lodged an FIR No. 772/2016 at Madhaw Nagar Police Station, Ujjain, MP against the said third person with whom his daughter/ respondent (herein) was residing. He had also lodged a complaint that his daughter was planning to flee from the country with the said third person with illegal passport. The father of the respondent filed another written complaint to SHO Neel Ganga police station Digitally signed by SHEFALI SHEFALI SHARMA SHARMA Date:
2024.08.22 CR No. 146/2024 18:06:56 +0530 Utkarsh Soni Vs. Richa Soni Page 4 of 9 Ujjain, MP on 28.01.2017.
The revisionist was constrained to eventually file Divorce petition on 06.04.2018 after making best efforts to save his marriage, before the Family Court, Ujjain, MP on the grounds of adultery and cruelty. Despite service of summons, the respondent did not appear before the Family Court proceedings and rather lodged a false FIR against the revisionist and his family members u/s 498A/406/34 IPC at PS Mahila Thana, bearing FIR No. 99 of 2018.
In the meantime, the respondent got the divorce petition pending at Ujjain Family Court transferred to Principal Judge, Family Court, North, Rohini by the orders of Hon'ble Supreme Court of India on 15.02.2022 and the Ld. Family Court directed the parties to appear on 04.03.2022.
9. Admittedly, the respondent alongwith her counsel appeared before the Family Court, Rohini on 04.03.2022 and were thus, well aware of the court proceedings at Rohini. However subsequently, respondent failed to appear and she was proceeded against ex-parte vide order dated 28.04.2022 and matter was fixed for ex-parte evidence.
Thereafter, vide a detailed judgment, passed by the Ld. Principal Judge, Family Court, Rohini on 31.05.2022, an ex parte decree was passed in favour of the revisionist.
10. The revisionist remarried on 02.06.2022 and in the Digitally signed by SHEFALI SHEFALI SHARMA Date: SHARMA 2024.08.22 18:07:07 +0530 CR No. 146/2024 Utkarsh Soni Vs. Richa Soni Page 5 of 9 meantime, an application u/o 9 rule 13 had been filed by the respondent herein on 22.08.2022 for setting aside the ex parte decree of divorce dated 31.05.2022, which is still pending for adjudication before the concerned Family Court, Rohini.
11. On 17.03.2023, the respondent filed a complaint u/s 200 Cr.PC and after adducing of pre summoning evidence, vide impugned order dated 24.01.2024, accused/ revisionist had been summoned u/s 494 IPC for the offence of bigamy.
12. The moot point of consideration here is that whether the remarrying of the revisionist after obtaining the decree of divorce on 31.05.2022 without waiting for the period of appeal as provided under Section 15 of the HMA, 1955, constitutes the criminal offence of bigamy or not.
At this stage, it is pertinent to note the law as laid in the case of "Krishna Gopal Vs. Prabha Divedi" (2002) 10 SCC 216, wherein it is held that when a person having got an ex parte (One sided) divorce from a court marries a second time and the first wife manages to get the ex parte divorce overturned , the person cannot be prosecuted for bigamy since at the time of the second marriage, he was divorced.
Further, in the case of Pashaura Vs. State of Punjab (2010) 11 SSC 749, it held that ..... Section 494 IPC inter-alia, requires the following ingredients to be satisfied, namely, (i) the accused must have contracted first marriage; (ii) he must have Digitally signed by SHEFALI SHEFALI SHARMA Date: SHARMA 2024.08.22 CR No. 146/2024 18:07:16 +0530 Utkarsh Soni Vs. Richa Soni Page 6 of 9 married again; (iii) the first marriage must be subsisting and (iv) the spouse must be living. Insofar as present case is concerned the appellant's marriage with Kamaljeet Kaur was not subsisting on January 2, 2002 when he is said to have married second time. Pertinently before the High Court, along with reply, the complainant Balwant Singh annexed copy of an affidavit filed by Kamaljeet Kaur which states that she was not aware of the divorce proceedings filed by her husband Pashaura Singh. However, from this affidavit, it is apparent that her husband has obtained a divorce judgment. There is nothing in the affidavit that divorce judgment has been stayed or set aside. On the face of the allegations made in the first information report, therefore, ingredients of the offence under Section 494, IPC are not satisfied...............
13. What emerges from the record is that respondent herein was well aware of the divorce proceedings as she herself got the same transferred from Madhya Pradesh to Delhi by the Hon'ble Supreme Court and then also appeared in the proceedings along with her counsel on 04.03.2022.
14. The contention that accused/revisionist herein did not wait for the 30 days from the date of dissolution of first marriage as per the mandate of Section 15 of HMA, it is pertinent to mention that till date despite passing of the ex parte decree on 31.05.2022 no appeal has still been filed by the respondent till Digitally signed by SHEFALI SHEFALI SHARMA SHARMA Date:
2024.08.22 CR No. 146/2024 18:07:25 +0530 Utkarsh Soni Vs. Richa Soni Page 7 of 9 date and even though an application under Order 9 Rule 13 CPC, had been filed, that too after three months of ex parte decree, no stay has been granted on the divorce decree dated 31.05.2022 by the Ld. Family Court and even this fact is not disputed and a matter of record, although, no finding is being given regarding the ex parte decree passed or the pending application under Order 9 Rule 13 CPC which is specifically within the jurisdiction of Ld. Family Courts.
Section 494 IPC states that whoever, having a husband or wife living, marries during the life of such husband or wife shall be punished with imprisonment of either description for a term which may extend for seven years.
15. Important factors to constitute bigamy are:
1.There should be an existence of previous marriages for the factor of bigamy
2.If either the husband or wife previous marriage existed then also they constitutes second marriage then bigamy is constituted
3.If the primary marriage is valid within the eye of law and also the second marriage is constituted it's said that bigamy is constituted
4.If the primary marriage isn't valid within the eye of the law and the second marriage is performed then it doesn't amount to bigamy.
16. In the present case, neither divorce judgment had been stayed or set aside and when the revisionist remarried, he was not having another marriage subsisting with his first wife. Even if for the sake of arguments it is assumed that the said ex parte Digitally signed by SHEFALI SHEFALI SHARMA Date: SHARMA 2024.08.22 CR No. 146/2024 18:07:33 +0530 Utkarsh Soni Vs. Richa Soni Page 8 of 9 decree had been over turned, still it cannot be said that provisions of bigamy would stand attracted, since at the time of second marriage on 02.06.2022, he was divorced. Even if, it amounts a civil wrong in terms of Section 15 of HMA, the same cannot be held to constitute an criminal offence under the Indian Penal Code.
17. In view of the above said discussion and observations, the impugned orders dated 24.01.2024 is set aside and the consequent orders passed regarding pre charge evidence are also set aside. The revision petition is accordingly disposed off as allowed and the revisionist stands discharged in the case.
18. It is clarified that nothing stated herein shall tantamount an expression of opinion on the merits of the civil litigation/cases before the Family Courts which may be pending between the parties.
19. TCR, if any, be sent back to the concerned court with copy of this order.
20. Revision file be consigned to Record Room.
SHEFALI Digitally signed by
SHEFALI SHARMA
SHARMA 18:07:43 +0530
Date: 2024.08.22
Pronounced in open (SHEFALI SHARMA)
Court on 22.08.2024 ADDITIONAL SESSIONS JUDGE-02,
NORTH DISTRICT,
. ROHINI COURTS, DELHI
CR No. 146/2024
Utkarsh Soni Vs. Richa Soni
Page 9 of 9