Delhi District Court
Shremwati @ Seema Srivastava vs Vinay Srivastava S/O Suraj Prasad on 8 March, 2013
IN THE COURT OF SH. RAJ KAPOOR,
ADDITIONAL SESSIONS JUDGE (WEST02) , THC DELHI.
Criminal Rev. No. 387/2/13
IN THE MATTER OF :
Shremwati @ Seema Srivastava
w/o Vinay Srivastava
R/o MIG Flats, G8, Area Mayapuri,
Delhi - 64.
..............Revisionist
Versus
1. Vinay Srivastava s/o Suraj Prasad
R/o MIG Flats, G8, Area Mayapuri,
Delhi - 64.
2. Ms. Kalpana Lal Sonewale
d/o Ganesh lal Sonewale
R/o A1218, Block 6,
Indiam Air Lines Colony,
Vasant Vihar, Delhi.
3. Kamal Chetan s/o Ramesh Kaoor
R/o D60 A, Paryan Complex,
Saidulajap Delhi.
4. Pankaj Sarabhai s/o G N Sarabhai
r/o 18D, Mayur Vihar,
Phase III, Pkt. I, MIG Housing
Delhi.
5. Arya Samaj Vivah mandir Trust
1945/ 46, Jamuna , Delhi - 06
6. Smt. Suchrita Shrivastava
w/o Suraj Prasad Shrivastava,
R/o MIG Flats, G8. Area Mayapuri,
Delhi
7. Vineet Shrivastava
1
s/o Lt. Suraj Prasad Shirvastava,
R/o MIG Flats, G8. Area Mayapuri,
Delhi
8. Smt. Sujata Shrivastava
w/o Ravi Shrivastava
R/o K V Hindon, Sahibabad.
................Respondents
08.03.2013
ORDER
1. This revision petition is directed against the order dated 17.05.2012 passed by ld. MM, (hereafter referred as impugned order) whereby ld. trial court dismissed the complaint of the revisionist being devoid of merit.
2. Briefly facts of the case are that revisionist married with respondent no.1 as per Hindu rites and ceremonies on 09.07.1995. Later on some differences arose between the parties to the marriage, allegedly on account of the behaviour of the accused persons. Respondent no.1 filed a divorce petition which was decreed vide order dated 14.01.2010. The revisionist / complainant filed an appeal in the Hon'ble Delhi High court and Hon'ble Delhi High court was pleased to stay the decree of divorce vide order dated 13.07.2010. During the proceedings in the Hon'ble Delhi High court, it was revealed that respondent no.1 had married respondent no. 2 on 26.02.2010 in 2 violation of section 15 read with section 28 (4) of the Hindu Marriage Act (i.e. before the completion of appeal period of 90 days). Now, the complainant seeks the summoning of the respondent no.1 and 2 under section 494/ 497 IPC and the summoning of remaining respondents under section 120 B IPC on the ground that they conspired together to aid respondent no.1 and 2 in commission of offences punishable u/s 494/ 497 IPC. Ld. Trial court followed the due course of law. Revisionist examined herself as CW1 and got exhibited the following documents before ld. Trial court:
a) CW1/A - Decree of Divorce dated 14.01.2010;
b) CW1/B - Copy of Stay order dated 13.07.2010 passed by Hon'ble Delhi High Court;
c) CW1/C - copy of application moved by the revisionist before Hon'ble Delhi High Court seeking a declaration of the respondent no.1's remarriage as null and void;
d) CW1/D - Copies of the reply filed by the respondent no.1 to the application; and
e) mark C to mark E - Copies of certificate pertaining to the marriage of respondent no. 1 and 2 and copies of photographs thereof.
ld. Trial Court after perusing all the evidences and relevant sections passed the impugned order dated 17.05.2012 and dismissed the complaint of the revisionist observing that : "It is apparent from the above mentioned ingredients that only a man could be summoned to face trial u/s 497 IPC in case the said ingredients are met. Accordingly the accused no.2, being a lady, cannot be summoned u/s 497 IPC. Accused no.1 is stated to have married respondent no.2 on 26.02.2010 and 3 hence the intercourse, if any, of the accused no.1 with accused no.2 cannot be held to be "adultery" by any means whatsoever. Therefore, this court is of the opinion that there are no sufficient materials available on record to summon the accused no.1 u/s 497 IPC.
Lastly, the allegations against the remaining coaccused persons, apart from the accused no.1 and 2, are that they conspired together to aid and abet the offences committed by the accused no.1 and 2 u/s 494/ 497 IPC. Since, this court has already held that no offence as prescribed u/s 494/ 497 IPC has been committed by accused no.1 and 2 , therefore, the question of summoning the remaining coaccused persons u/s 120 B IPC does not arise. The complaint is devoid of any merits and is hereby dismissed. File be consigned to Record Room."
3. Feeling aggrieved with the impugned order dt. 17.05.2012 , ld. Counsel for the revisionist filed this revision petition.
4. Arguments were heard at length. During the course of arguments ld. Counsel for the revisionist argued and submitted that a complaint was filed for the offence U/s 494 IPC against the respondents which was dismissed by Ld. MM vide court order dated 17.05.2012. Ld. Counsel for revisionist again submitted that without the expiry of period of limitation within 90 days from the date of order, the respondent entered into marriage on dated 16.02.2012 and the limitation period to be expired on 15.03.2012. In support of his contentions, he relied upon citations i.e. Suman Kapur Vs. Sudhir Kapur AIR 2009 Supreme Court 589 , wherein it has been observed that: "Remarriage by party, not to be done before expiry of period for filing of SLP against decree. 4 Husband having remarried before such period, in circumstances, directed to pay 5 lakh rupees to wife."
and another citation i.e. Jasbir Kaur Vs. Kuljit Singh of Punjab & Haryana High Court on 21.04.2008 (2008) 3 PLR 192, wherein it has also been observed that: "............... no person can remarry even if a marriage has been dissolved by a decree of divorce, till the period of filing of an appeal has expired without an appeal having been presented or the appeal having been dismissed."
On these grounds, he submitted that order of dismissal of the complaint be set aside and concerned trial court be directed to proceed against the respondents.
5. I have perused the case file and gone through the submissions of ld. counsel for the revisionist. The main argument of the ld. Counsel for the revisionist is that before the expiry of the appeal time i.e. 90 days, marriage was entered into respondent no.1 and respondent no.2. On perusal of the case file it reveals that decree of divorce was granted by the Court concerned on 14.01.2010 and the Stay order was passed by the Hon'ble High Court on 13.07.2010, meaning thereby that order appears to have been passed after a period of 3 months. No particulars with regard to filing of appeal has been brought on record by the revisionist. Therefore, the arguments that before the expiry of 5 limitation period i.e. 3 months, respondent no.1 and 2 married, is not sustainable. Both judgments 'Suman Kapur Vs. Sudhir Kapur AIR 2009 Supreme Court 589 ' and 'Jasbir Kaur Vs. Kuljit Singh of Punjab & Haryana High Court on 21.04.2008 (2008) 3 PLR 192', discussed supra, relied upon by the ld. Counsel for the revisionist are not applicable in the present case since facts of both cases are different from the present case. Therefore, I do not find any merit in the revision petition to succeed at this stage. Hence, in light of these facts and circumstances of the case, the revision petition is dismissed. Trial Court record, if any, be sent back with a copy of the order. Revision petition/ proceedings be consigned to record room. ANNOUNCED IN THE OPEN COURT ON THIS 08.03.2013 (RAJ KAPOOR) ADDITIONAL SESSIONS JUDGE (WEST02):THC DELHI 6 Shremwati Vs Vinay Srivastava 08.03.2013 Pre: None.
File perused. Vide separate detailed order placed along side in the file, revision petition is dismissed. Trial Court record, if any, be sent back with a copy of the order. Revision petition/ proceedings be consigned to record room.
(RAJ KAPOOR) ADDITIONAL SESSIONS JUDGE (WEST02):THC DELHI 7