Punjab-Haryana High Court
Kuldip Singh And Others vs State Of Punjab And Others on 19 July, 2013
Author: Rekha Mittal
Bench: Rekha Mittal
Crl. Misc. No. M-32993 of 2012 -1-
In the High Court of Punjab and Haryana at Chandigarh
Crl. Misc. No. M-32993 of 2012 (O&M)
Date of Decision: July 19, 2013
Kuldip Singh and others
---Petitioners
versus
State of Punjab and others
---Respondents
Coram: Hon'ble Mrs. Justice Rekha Mittal
Present: Ms. Gurvir Kaur Gill, Advocate
for the petitioners
Mr. Amarinder Singh Klar, Asstt. Advocate General, Punjab
for respondent-State.
Mr. Gurmeet Singh Saini, Advocate,
for respondent No.2
***
REKHA MITTAL, J.
The present petition under Section 482 of the Code of Criminal Procedure (for short "the Code") has been filed for quashing/setting aside order dated 15.7.2011 (Annexure P-1) passed by the Judicial Magistrate Ist Class, Ferozepur in criminal Complaint titled "Bimla Rani vs. Kuldip Singh and others" and order dated 6.8.2012 (Annexure P-2) passed by the Additional Sessions Judge, Ferozepur dismissing the revision petition filed against the summoning order.
Counsel for the petitioners submits that Bimla Rani-respondent No. 2 was married to Kuldip Singh. The marriage of Kuldip Singh and Bimla Rani was dissolved by way of a panchayati settlement and respondent No. 2 executed an affidavit dated 27.5.2010 (Annexure P-3). It Saini Paramjit Kaur 2013.07.23 18:13 I attest to the accuracy and integrity of this document Chandigarh Crl. Misc. No. M-32993 of 2012 -2- is submitted that as marriage of petitioner No. 1 with Bimla Rani had been dissolved, petitioner No. 1 legally performed his second marriage. According to counsel, respondent No. 2-Bimla Rani has also performed marriage after getting divorce from petitioner No. 1.
Another plea raised by counsel is that the learned trial Court without application of mind summoned petitioners No. 5 to 8 for offence under Section 498-A IPC without any allegation that they had any role to play or caused cruelty to respondent No. 2 in connection with demand of dowry. It is argued that petitioner No. 5 - Manjit Kaur, is the person with whom Kuldip Singh performed marriage after getting divorce and petitioners No. 6 to 8 are the parents and brother, respectively, of said Manjit Kaur. Manjit Kaur and her family members had no connection with Kuldip Singh before her marriage with Kuldip Singh.
Another argument advanced by counsel is that, at the most, petitioner Kuldip Singh can be proceeded against for commission of offence under Section 494 IPC. The learned trial Court has summoned petitioners No. 2 to 8 also for offence under Section 494 IPC without appreciating that these petitioners, at best, can be attributed abettment for offence of bigamy.
Counsel for respondent No. 2, on the other hand, argues that there was no settlement between the parties and respondent No. 2 has categorically denied any such settlement between petitioner No. 1 and respondent No. 2 with the intervention of panchayat. It is argued that till the time, marriage of petitioner No. 1 with respondent No. 2 is dissolved by a decree of divorce passed by a competent Court of law, the marital alliance between them would subsist and marriage of petitioner No. 1 with Manjit Kaur, in the presence of other petitioners would make them liable for Saini Paramjit Kaur 2013.07.23 18:13 I attest to the accuracy and integrity of this document Chandigarh Crl. Misc. No. M-32993 of 2012 -3- commission of offence under Section 494 IPC. It is further submitted that keeping in view the allegations of the complainant duly corroborated during her examination before the Court, the petitioners have rightly been summoned for facing trial under Sections 498-A and 494 IPC.
I have heard counsel for the parties and perused the records. A perusal of allegations of the complaint would reveal that there are no allegations against petitioners No. 5 to 8 with regard to demand of dowry or the complainant (respondent No. 2) being subject to maltreatment, torture, harassment etc. by these petitioners in connection with demand of dowry. The learned trial Court as well as the revisional Court failed to appreciate that no offence under Section 498-A IPC is prima facie made out against petitioners No. 5 to 8, who is the wife of second marriage of Kuldip and parental family members of Manjit Kaur. The orders passed by the Courts below with regard to petitioners No. 5 to 8 being liable to face trial for offence under Section 498-A IPC are illegal and accordingly set aside.
Indisputably, no decree of divorce was passed dissolving marriage of petitioner-Kuldip Singh and respondent No. 2 Bimla Rani. Counsel for the petitioners has candidly confessed that Kuldip Singh has performed marriage with Manjit Kaur without getting a decree of divorce. Bimla Rani even does not accept any settlement between the parties through intervention of panchayat. This apart, assuming for a moment, that there was a settlement between the parties with the intervention of panchayat, until marriage of Kuldip Singh and Bimla Rani is dissolved by a valid decree of divorce, the performance of marriage by Kuldip Singh with Manjit Kaur prima facie proves Kuldip Singh liable to face proceedings for Saini Paramjit Kaur 2013.07.23 18:13 I attest to the accuracy and integrity of this document Chandigarh Crl. Misc. No. M-32993 of 2012 -4- offence under Section 494 IPC.
Now the question arises, whether petitioners No. 2 to 8 can be summoned for offence under Section 494 IPC as they allegedly facilitated performance of marriage of Kuldip Singh and Manjit Kaur despite their knowledge that earlier marriage of Kuldip Singh and Bimla Rani was subsisting at the time of performance of marriage of Kuldip Singh with Manjit Kaur.
Section 494 IPC deals with marrying again during life time of husband or wife. The provision being relevant is quoted hereinbelow:-
"Marrying again during lifetime of husband or wife.-- Whoever, having a husband or wife living, marries in any case in which such marriage is void by reason of its taking place during the life of such husband or wife, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.
Exception.- This section does not extend to any person whose marriage with such husband or wife has been declared void by a Court of competent jurisdiction, nor to any person who contracts a marriage during the life of a former husband or wife, if such husband or wife, at the time of the subsequent marriage, shall have been continually absent from such person for the space of seven years, and shall not have been heard of by such person as being alive within that time provided the person contracting such subsequent marriage shall, before such marriage takes place, inform the person with whom such marriage is contracted of the real state Saini Paramjit Kaur 2013.07.23 18:13 I attest to the accuracy and integrity of this document Chandigarh Crl. Misc. No. M-32993 of 2012 -5- of facts so far as the same are within his or her knowledge."
A perusal of Section 494 IPC makes it manifest that only a spouse who has a husband or wife living performs marriage during life time of such husband or wife, shall be liable for punishment under Section 494 IPC (in common parlance known as bigamy). Petitioners No. 2 to 4, 6 to 8 being relatives of the parties present at the ceremony of marriage and Manjit Kaur, the second wife can be summoned only for abetting the offence of bigamy. The learned trial Court as well as the revisional Court failed to consider the provisions of Section 494 IPC in right perspective and as a result fell into a grave error in holding petitioners No. 2 to 8 liable to face trial for offence under Section 494 IPC. However, keeping in view allegations of the complainant and evidence led during preliminary hearing, petitioners No. 2 to 8 are liable to stand trial for offence under Section 494 IPC read with Section 109 IPC.
In view of what has been discussed hereinabove, the petition is partly allowed. Orders passed by the trial Court and the revisional Court in regard to liability of petitioners No. 5 to 8 to face trial for offence under Section 498-A IPC, are set aside. The order with regard to liability of petitioners No. 2 to 8 for offence under Section 494 IPC is modified with the finding that they will face trial for offence under Section 494 read with Section 109 IPC.
(REKHA MITTAL) JUDGE July 19, 2013 PARAMJIT Saini Paramjit Kaur 2013.07.23 18:13 I attest to the accuracy and integrity of this document Chandigarh