Punjab-Haryana High Court
Gomti vs Bahadur And Ors. on 13 February, 1997
Equivalent citations: II(1997)DMC479
Author: Iqbal Singh
Bench: Iqbal Singh
JUDGMENT Iqbal Singh, J.
1. This is a petition by the aggrieved wife for quashing the orders, Annexures P4 and P6 passed by Judicial Magistrate 1st Class, Sirsa, and Additional Sessions Judge, Sirsa, respectively.
2. The case of the petitioner is that she was married to Bahadur (respondent No. 1) on 23.5.1975 according to Hindu rites and out of this wedlock a daughter was born. It is alleged that Bahadur (respondent No. 1) remarried Indrawati (respondent No 5) on 3.2.1980; that respondent Nos. 2 and 3 are the parents of her (petitioner's) husband; and that respondent Nos. 6 and 7 are the parents of Indrawati (respondent No. 5). It is alleged that Rameshwari and Khetpal (respondent Nos. 4 and 10) are close relations of Bahadur (respondent No. 1) whereas Dulla Ram (respondent No. 9) is a close relation of Indrawati (respondent No. 5) and that Pandit Rameshwar (respondent No. 8) performed the marriage of Bahadur (respondent No. 1) with Indrawati (respondent No. 5). It is alleged that respondent No. 1 performed the second marriage with respondent No. 5 in connivance with respondent Nos. 2 to 4 and 6 to 10 and that all these respondents knew that respondent No. 1 was already married to the petitioner.
3. The petitioner filed complaint (Annexure P 1) against the respondents under Sections 494/34/109/114, Indian Penal Code and mentioned in the complaint that the marriage ceremonies of respondent No. 1 with respondent No. 5 were witnessed by the persons mentioned in the list of witnesses enclosed with the complaint.
4. The Judicial Magistrate 1st Class, Sirsa, after recording perliminary evidence, summoned the respondents to face trial under Section 494 read with Section 109, Indian Penal Code, vide his order dated 10.7.1980.
5. Krishan Lal (respondent No. 6) filed revision petition before the learned Sessions Judge, Sirsa, against the order dated 10.7.1980 which was dismissed by Mr. R.D. Aneja, Additional Sessions Judge, Sirsa, vide order dated 4.9.1982. Bahadur (respondent No. 1) also went in revision against the order dated 10.7.1980 which was dismissed by Mr. Jag Bhushan Garg, Sessions Judge, Sirsa, vide order dated 21.11.1984.
6. When the case came up for framing of charge after the recording of pre-charge evidence, the complaint was dismissed and the respondents-accused were discharged vide order dated 26.4.1986 passed by the Judicial Magistrate 1 st Class, Sirsa. Against the order dated 26.4.1986 (Annexure P2), the complainant went in revision and the learned Additional Sessions Judge, Sirsa, vide his order dated 8.10.1987 (Annexure P3) accepted the revision and remitted the case to the Ilaqa Magistrate, Sirsa, for making further enquiry into matter.
7. After the remand of the case, the complaint again came up for hearing before the Judicial Magistrate 1st Class, Sirsa, who vide his order dated 1.9.1988 (Annexure P4) did not find prima facie case under any provision of law against any of the respondents and discharged the respondents. Again, a revision petition (Annexure P5) was filed by Gomti (petitioner) against the order dated 1.9.1988 before the learned Sessions Judge, Sirsa. The learned Additional Sessions Judge, Sirsa, vide his order dated 16.1.1989 (Annexure P6) dismissed the revision petition filed by the complainant Gomti. Hence the present petition under Section 482 of the Code of Criminal Procedure has been filed by Gomti (petitioner-complainant).
8. The main stress of the learned Counsel for the petitioner was that the learned Additional Sessions Judge, Sirsa, first accepted the revision petition filed by the complainant vide his order dated 8.10.1987 (Annexure P3) and remanded the case to the Ilaqa Magistrate for further enquiry into the matter; but when the complaint after remand was dismissed by the Judicial Magistrate Sirsa, vide order dated 1.9.1988 (Annexure P4) and the petitioner-complainant Gomti again went in revision against the said order, the learned Additional Sessions Judge dismissed the same vide order dated 16.1.1989 (Annexure P6),whic his contradictory. I do not find any force in the submission made by the learned Counsel for the petitioner- complainant. As mentioned above, vide order dated 8.10.1987 (Annexure P3), the learned Additional Sessions Judge had remitted the case to the Ilaqa Magistrate for making further enquiry into the matter. After the receipt of the case on remand, the Judicial Magistrate 1st Class, Sirsa, heard the Counsel for the parties and perused the record and thereafter passed the detailed order dated 1.9.1988 (Annexure P4) dismissing the complaint (Annexure P9) and discharging the respondents. When the complainant again preferred revision against the order dated 1.9.1988 (Annexure P4), the learned Additional Sessions Judge, Sirsa, did not find merit in the revision petition and dismissed the same vide order dated 16.1.1989 (Annexure P6) finding no illegality or material irregularity in the procedure adopted by the Trial Magistrate while passing the order dated 1.9.1988 (Annexure P4). Thus, it cannot be said that the learned Additional District Judge passed two contradictory orders.
9. What the petitioner is to establish is that the first marriage of the petitioner with Bahadur (respondent No. 1) and the alleged second marriage of Bahadur with Indrawati (respondent No. 5) were performed according to Hindu rites. In fact, the petitioner is to prove that both the marriages were validly performed as required by law. In the complaint it is not specifically stated as to the rites for performing the first or second marriage. What is stated is that the witnesses mentioned in the list of witnesses, witnessed the second marriage. The list of witnesses appended with the complaint gives the names of witnesses as petitioner herself as witness No. 1, Dev Raj son of Jaimal Ram resident of Fatehbad as witness No. 2, Mangat Ram son of Jagan Nath resident of Fatehbad as witness No. 3 and Devi Lal son of Mana Ram resident of Village Keharwala was witness No. 4. Admittedly, the petitioner is not a witness to the second marriage and, therefore, her evidence as regards the second marriage has no relevancy. A perusal of the statements of Hari Ram (PW 2) and Mangat Ram (PW 4) does not go to show the second marriage was performed according to Hindu rites inasmuch as they never stated that the couple took seven rounds around the sacred fire. In fact, these witnesses have stated that 3/4 rounds around the sacred fire were taken. They have not alluded to the evidence of Pandit Rameshwar (respondent No. 8) having performed the marriage. Hari Ram (PW 2), the father of the complainant, was not cited as a witness in the list of witnesses appended to the complaint (Annexure PI) and, therefore, his evidence is of no help to the petitioner. Mangat Ram (PW 4), driver, who allegedly carried the marriage party of the second marriage of Bahadur in his vehicle from Village Chuli Bagrian, also stated that Bahadur contracted the marriage after taking3/4 steps around the sacred fire. Devi Lal (PW 3) in his cross-examination has stated that he does not know Mangat Ram (PW 4); that he never went with Mangat Ram to any place and that he (Devi Lal) has not even seen his (Mangat Ram's) face. Therefore, Devi Lal (PW 3) contradicts the statement of Mangat Ram (PW 4) on vital aspects of the case.
10. For application of Section 494, Indian Penal Code, marriage must come within 'solemnized marriage' 'Solemnize' means 'to celebrate the marriage with proper ceremonies and in due form.' It follows, therefore, that unless the marriage is 'celebrated or performed with proper ceremonies and due form', it cannot be said to be 'solemnized'. It is, therefore, essential, for the purpose of Section 17 of the Hindu Marriage Act, that the marriage to which Section 494, Indian Penal Code, applies on account of the provisions of the Hindu Marriage Act, should have been celebrated with proper ceremonies and in due form. The expression, 'whoever... marries' in Section 494, Indian Penal Code must mean 'whoever... marries validly' or 'whoever... marries and whose marriage is a valid one.' If the marriage is not a valid one, according to the law applicable to the parties, no question of its being void by reason of its taking place during the life of the husband or wife marrying arises. If the marriage is not a valid marriage, it is no marriage in the eyes of law. (Reference in this behalf may be made to the authority reported as Bhaurao Shankar Lokhande and Anr. v. The State of Maharashtra and Anr., AIR 1965 Supreme Court 1564). Applying this principle, let us now revert back to the complaint (Annexure P1). Perusal of the complaint (Annexure P 1) does not show that there is any mention of any ceremony what to say of proper ceremony. Therefore, the complainant has failed to prove the alleged second marriage of Bahadur (respondent No. 1) to Indrawati (respondent No. 5) validly, legally and in accordance with the law.
11. I, therefore, for the a fotrementioned reasons find that the petitioner has not been able to make out a case for proving the offence alleged to have been committed by any of the respondents. This petition is, accordingly, dismissed.