Delhi High Court
Manju Khullar vs Vijay Kumar Khullar & Anr. on 22 September, 1999
Equivalent citations: 1999VIAD(DELHI)166, 82(1999)DLT68, I(2000)DMC283, 1999(51)DRJ322
Author: M.S.A. Siddiqui
Bench: M.S.A. Siddiqui
ORDER M.S.A. Siddiqui , J.
1. After hearing learned counsel for the parties, I propose to dispose of this revision petition at the stage of admission itself.
2. The facts giving rise to this revision are that on 13.11.1979, the petitioner entered into wedlock with the respondent. On 9.11.1987, the petitioner filed a divorce petition against the respondent on the ground of cruelty and harassment. In January, 1988, the respondent entered appearance and filed an application before the Matrimonial Court stating that the marriage had been dissolved by a decree dated 29.10.1984, granted by the District Judge, Hmairpur, Una (HP). Thereupon the petitioner filed an application before the District Judge, Hamirpur, Una (HP) for setting aside the said ex parte decree. During the said proceedings the respondent made a statement about his marriage with Ms. Suresh Kumari @ Suresh Khullar on 14.10.1988. By the order dated 4.11.1989, the District Judge, Hmairpur, Una (HP) set aside the ex parte decree dated 29.10.1984. Thereafter, the respondent withdrew the suit for divorce as a result whereof the same was dismissed as withdrawn vide orders dated 15.11.1989. After dismissal of the said suit, the petitioner filed a complaint under Sections 494/497/120-B IPC against the respondent. By the order dated 27.10.1997, the MetropolitanMagistrate, New Delhi directed framing of charges under Section 494/497 IPC against the respondent. Aggrieved by the said order, the respondent moved the Addl. Sessions Judge, New Delhi by filing a revision petition which was allowed and the respondent was discharged vide orders dated 18.9.1998. Feeling aggrieved, the petitioner has come up in revision before this Court.
3. Assailing validity of the impugned order, learned counsel for the petitioner contended that the evidence adduced by the petitioner makes out a prima facie case under Section 494 IPC against the respondent and the learned Addl. Sessions Judge has committed a manifest illegality in setting aside order dated 27.10.1997 passed by the Metropolitan Magistrate directing framing of charges under Section 494/497 IPC against the respondent. It is undisputed that on 13.11.1979, the petitioner was married to the respondent; that on 9.11.1987, the petitioner filed a divorce petition against the respondent; that the respondent resisted the divorce proceedings contending that his marriage with the petitioner stands dissolved by an ex parte decree dated 29.10.1984, granted by the District Judge, Hamirpur, Una (HP); that on petitioner's application, the said ex parte decree was set aside and suit was restored vide orders dated 29.10.1984 passed by the District Judge, Hamirpur, Una(HP), and that thereafter the said suit was dismissed as withdrawn by the respondent. It is also undisputed that during pendency of the said proceedings the respondent made a statement regarding his marriage with Ms. Suresh Kumari @ Suresh Khullar on 14.10.1988. It is alleged that the said admission of the respondent alone is sufficient to made out a case under Section 494 IPC against him and the learned Addl. Sessions Judge has committed a patent illegality in discharging the respondent. Learned Addl. Sessions Judge, relying on the decision rendered by the Supreme Court in Laxmi Devi Vs. Satya Narayan and others , has held that validity of the respondent's second marriage with Ms. Suresh Kumari @ Suresh Khullar has not been proved by cogent evidence and in the absence of proof of the ceremony of the marriage, mere admission of marriage by the respondent is not sufficient to fasten criminal liability on him in respect of the offence punishable under Section 494 IPC.
4. In Bhaurao Shankar Lokhande and another Vs. The State of Maharastra and another , it was held that Section 17 of the Hindu Marriage Act makes the marriage between two Hindus void if two conditions are satisfied : (i) the marriage is solemnized after the commencement of the Act, and (ii) at the date of such marriage, either party had a spouse living. 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 was further held that it is essential for the purpose of Section 17 of the Act, that the marriage to which Section 494 IPC applies on account of the provisions of Act, should have been celebrated with proper ceremonies and in due form. In the instant case, the complaint filed by the petitioner (Annexure P/6 at page 38 of the paper book) is conspicuous by absence of any specific averment to the effect that the respondent's marriage with Smt. Suresh Khullar was performed with the proper ceremonies and in due form. In order to prove her case, the petitioner relies on the averments made by Ms. Suresh Kumari @ Suresh Khullar (alleged second wife of the respondent) in her complaint under Section 494/109/114/120-B/420 IPC (Annexure-P/9 at page 52 of the paper book) filed against the respondent and others, beside the evidence of Ms. Suresh Kumari @ Suresh Khullar and the admission made by the respondent before the District Judge, Hamipur, Una (HP), (at page 62 of the paper book). It is significant to mention that even Smt. Suresh Khullar has not stated in her statement that her marriage with the respondent was performed with proper ceremonies and in due form. She has simply stated that she was married to the respondent on 14.10.1988. Thus, the bald statement of Smt. Suresh Kumari about her marriage with the respondent does not come within the expression 'solemnized marriage' occurring in Section 17 of the Hindu Marriage Act and consequently does not come within the mischief of Section 494 IPC even though the first wife (petitioner) was living when he married Smt. Suresh Kumari on 14.10.1988. Thus, in the absence of specific evidence regarding the performance of these essential rites, namely, Homa and Saptapadi it cannot be concluded that the petitioner has made out a prima facie case under Section 494 IPC against the respondent. The learned Addl. Sessions Judge has rightly concluded that the case in hand is squarely covered by the decision of the Supreme Court in Laxmi Devi (supra). As regards the respondent's admission about his marriage with Smt. Suresh Khullar in the matrimonial proceedings pending before the District Judge, Hamirpur, Una (HP), it cannot be pressed into service for charging the respondent with an offence under Section 494 IPC (Kanwal Ram and others Vs. The Himachal Pradesh Administration ; Brijlal Bishnoi Vs. State and another 1996 M.L.R. 401). In my opinion, the impugned order does not suffer from any legal infirmity warranting interference of this Court. In the result, the revision is dismissed.