Kerala High Court
July Mary Thomas vs Ajith Abraham on 1 February, 2021
Author: P.Somarajan
Bench: P.Somarajan
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.SOMARAJAN
MONDAY, THE 01ST DAY OF FEBRUARY 2021 / 12TH MAGHA,1942
Crl.MC.No.4131 OF 2016(F)
AGAINST THE ORDER/JUDGMENT IN CC 170/2016 OF JUDICIAL MAGISTRATE
OF FIRST CLASS ,THIRUVALLA
PETITIONERS:
1 JULY MARY THOMAS
AGED 35 YEARS, D/O K.P. THOMAS,
KAVUMKOTTETHU HOUSE,
NELLICKAMON. PO., RANNI TALUK,
PATHANAMTHITTA DISTRICT, PIN-689680.
2 K.P. THOMAS
AGED 63 YEARS, KAVUMKOTTETHU HOUSE,
NELLICKAMON. PO., RANNI TALUK,
PATHANAMTHITTA DISTRICT, PIN-689680.
3 ANNAMMA THOMAS
AGED 60 YEARS,W/O. K.P. THOMAS,
KAVUMKOTTETHU HOUSE,
NELLICKAMON. PO., RANNI TALUK,
PATHANAMTHITTA DISTRICT, PIN-689680.
BY ADV. SRI.V.SETHUNATH
RESPONDENTS/COMPLAINANT:
1 AJITH ABRAHAM
AGED 38 YEARS, S/O ABRAHAM, BETHEL BHAVAN,
NEAR VETENARY HOSPITAL,PALIAKKARA,
THIRUVALLA,PATHANAMTHITTA DISTRICT, PIN.689101.
2 SUB INSPECTOR OF POLICE
THIRUVALLA, PIN.682031.
3 STATE OF KERALA
RERESENTED BY THE PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM, PIN-682031.
R1 BY ADV. SRI.T.P.PRADEEP
R1 BY ADV. SRI.P.K.SATHEES KUMAR
R2 & R3 BY ADV. SRI. E.C. BINEESH, PUBLIC PROSECUTOR
THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON
01.02.2021, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
Crl.MC.No.4131 OF 2016(F)
2
ORDER
An attempt to extend criminal liability under Section 495 IPC against the wife, father-in-law and mother-in-law by taking cognizance on a private complaint at the instance of husband brought under challenge. Cognizance was taken under Section 495 IPC on the ground that earlier marriage was suppressed and concealed from the notice of the husband/complainant.
2. In order to attract the offence under Section 495 IPC, there should be a concealment of earlier marriage coupled with commission of offence punishable under Section 494 IPC. In the absence of an offence under Section 494 IPC, no criminal liability can be fastened against any person for the aggravated offence under Section 495 IPC. In other words, in order to attract Section 495 IPC, the commission of offence under Section 494 IPC is Crl.MC.No.4131 OF 2016(F) 3 a condition precedent, without which, no criminal liability can be fastened for the aggravated offence under Section 495 IPC.
3. The accused No.1, the wife admittedly had undergone an earlier marriage abroad and it was subsequently divorced under a foreign decree. It was submitted that the above said decree of divorce would not bind upon the parties in view of Section 44 A CPC and as such, there is no valid divorce of the marriage solemnized. The foreign decree of divorce cannot be accepted in view of Section 44 A CPC and hence the second marriage can only be one solemnized during the subsistence of earlier marriage and it would attract the aggravated offence under Section 495 IPC, it was submitted.
4. Section 44 A CPC would come into play only with respect to implementation or execution of a foreign decree or award. There will be hardly any application of Section 44 A CPC when nothing is left out to be executed or implemented Crl.MC.No.4131 OF 2016(F) 4 under the foreign decree or award. In the matter of a decree of divorce, unless the same is coupled with other reliefs to be executed or implemented, the same cannot be brought under the purview of Section 44 A CPC. Since the earlier marriage solemnized abroad was dissolved by way of decree of divorce (foreign decree), the solemnization of second marriage will not attract the minor offence under Section 494 IPC and as such, the aggravated form of offence under Section 495 IPC will not stand attracted. Hence, the private complaint and the cognizance taken is hereby quashed.
Crl.M.C. is allowed accordingly.
Sd/-
P.SOMARAJAN JUDGE SPV Crl.MC.No.4131 OF 2016(F) 5 APPENDIX PETITIONERS' EXHIBITS:
ANNEXURE-1 THE TRUE COPY OF THE COMPLAINT FILED BY THE 1ST RESPONDENT/COMPLAINANT ANNEXURE-2 CERTIFICATED COPY OF THE REPORT FILED BY THE 2ND RESPONDENT BEFORE THE JFMC, THIRUVALLA DATED 17/8/2015 ANNEXURE-3 CERTIFIED COPY OF THE ORDER OF THE JFMC - THIRUVALLA ISSUING PROCESS ANNEXURE-4 THE TRUE COPY OF THE MARRIAGE CERTIFICATE ISSUED BY THE MARRIAGE OFFICER DATED 23-7-2007 ANNEXURE-5 THE TRUE COPY OF THE FINAL DECREE OF DIVORCE ISSUED BY THE JUDICIAL DISTRICT COURT, HIDALGO COUNTY TEXAS, IN USA RESPONDENTS' EXHIBITS: NIL //TRUE COPY// PA TO JUDGE