Delhi District Court
Smt. Sheela Bairwa vs Sh. Raja Bairwa on 20 March, 2014
IN THE COURT OF SH. NARESH KUMAR MALHOTRA: ASJ05 :
WEST DISTRICT, TIS HAZARI COURTS, DELHI
C.R. No. 44/14 and Old No. 149/13.
Smt. Sheela Bairwa,
aged about 32 years,
D/o Sh. Ganga Sahai,
W/o Sh. Raja Bairwa,
R/o H. No. H401, Mangol Puri,
Delhi 110083.
...................Petitioner
VERSUS
1. Sh. Raja Bairwa,
S/o Sh. Ram Parsad,
R/o H. No. D28, Extn. No. 2, Nangloi,
Delhi 110042.
2. Sh. Ram Parsad,
R/o H. No. D28, Extn. No. 2, Nangloi,
Delhi110042.
3. Smt. Ram Bai,
W/o Sh. Ram Parsad,
R/o H. No. D28, Extn. No. 2, Nangloi,
Delhi110042.
4. Sh. Ram Lal,
R/o Y264, Nangloi No. 3,
Delhi110042.
5. Smt. Ramwati,
W/o Ram Lal,
R/o Y264, Nangloi No. 3,
Delhi110042.
6. Smt. Sushil,
W/o Heera Lal,
CR No.44/14 and old CR No.149/13 Page No. 1 of 8
R/o RZ210, M Raj NagarII, Palam Colony,
New Delhi.
7. Sh. Heera Lal,
R/o RZ210, M Raj NagarII, Palam Colony,
New Delhi.
..............Respondents
DATE OF INSTITUTION : 30.09.2013.
DATE OF RESERVING THE ORDER : 18.03.2014.
DATE OF DECISION : 20.03.2014.
ORDER
1. Vide this order, I shall decided the revision against the order dated 05.09.2013. Vide this order, the ld. MM has dismissed the complaint filed by the revisionist.
2. The essential facts for disposal of the present revision petition as per complaint filed by the petitioner against the respondents under Section 200 Cr.P.C are as that the respondent no. 1 is her husband. Respondent no. 2 is father in law, respondent no. 3 is motherinlaw, accused no. 4 is uncle (Phoofa of respondent no. 1), respondent no. 5 is aunt (Bua of respondent no. 1 ), respondent no. 6 is sister in law and respondent no. 7 is Nandoi of the complainant. The complainant was married according to Hindu rites & ceremonies on 24.07. 2003 and a girl named Tanisha was born on 07.04.2004. The respondents caused cruelty to the complainant in respect of dowry and FIR was registered against the respondents. As per complainant the respondent no. 1 fraudulently married with other woman Anita during her life time and he has CR No.44/14 and old CR No.149/13 Page No. 2 of 8 committed offence punishable under Section 494 IPC. As per the complainant the other respondents accompanied and attended the marriage while knowing that respondent no. 1 is husband of the complainant and with common intention he married respondent no. 1 with their criminal conspiracy. The complainant further averred that she received information from respondent no. 1 of his second marriage on 28.10.2012 and respondent no. 1 threatened her with dire consequences and disclosed that a son was born on 16.08.2012 at M.G.S. Hospital from second wife. As per the complainant, the respondent no. 1 and his family members stage managed to prepare the complainant for decree of divorce and for withdrawing all cases and for quashing of FIR under Section 498A/406 IPC. The father of the complainant went to the hospital and got photocopy of birth certificate. As per the complainant all the respondents are liable for prosecution under Section 494/420/506/201/34/120B IPC.
3. In presummoning evidence before the Ld. MM the complainant examined herself as CW1. This witness stated that she was married with respondent no. 1 on 20.04.2003 as per Hindu rites and ceremonies and satpadi/saat pheras ceremony were also performed at her parental house. She also stated that out of the wedlock, one issue was born on 07.04.2004 at Ambedkar Hospital, Rohini. This witness proved FIR as Mark X and election voting Icard as mark X1. The copy of order of Mediation Centre was proved as Mark X2. The complainant stated in her presummoning evidence that on 28.10.2012, the accused No. 1 Raja Bairwa met her in Nangloi market and told CR No.44/14 and old CR No.149/13 Page No. 3 of 8 her that he has already remarried and he has a son from his second wife born on 16.08.2012 at M.G.S. Hospital, Punjabi Bagh. It is also stated by her that her father also verified this fact from the hospital and got the copy of birth certificate of child, which was proved as Mark X3. The accused no. 1 also threatened her on 28.10.2012 and she lodged complaint in the PS Nangloi and to higher officials. Copies of the same are marked as mark X4 and X5 respectively. This witness stated that her married with accused no. 1 Raja Bairwa is still persisting and the accused has committed the offence under Section 494 IPC by remarrying and also committed offence under Section 506 IPC.
4. The father of the complainant appeared as CW2 in the witness box in presummoning evidence and this witness stated that his daughter had told him that Raja Bairwa has already remarried as told by the respondent no. 1 to her on 28.10.2012. This witness stated that an issue was born to the respondent no. 1 out of second wedlock on 16.08.2012 at M.G.S. Hospital. This witness also proved the copy of birth certificate of child as mark X3.
5. Ms. Seema, Record Clerk, MGS Hospital, Punjabi Bagh, New Delhi appeared as CW3. This witness proved the registration certificate of birth of child of Anita and Sh. Raja born on 16.08.2012 in the hospital as Mark A (OSR). This witness also stated that she had worked with Dr. Kalpana Tyagi and she can recognize her handwriting and signatures. This witness proved CR No.44/14 and old CR No.149/13 Page No. 4 of 8 birth report dated 16.08.12 of male child of Anita and Sh. Raja filled by Dr. Kalpana Tyagi as Ex. CW3/A. This witness identified signatures of Dr. Kalpana Tyagi at point A.
6. Ld. MM in his order held that the second marriage also has to be proved as matter of fact and further it has to be proved that second marriage was also validly performed according to essential rites and ceremonies applicable to the parties. Ld. MM has also held that considering the fact that no evidence has been brought on record as to on which date, the alleged accused No. 1 married with alleged Anita according to rites and ceremonies applicable to them, therefore, in the opinion of this court, there are no grounds for proceedings further against the accused no. 1 for offence under Section 494 IPC.
7. Section 494 IPC reads as under: 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.
8. In the present case, it is admitted fact that the complainant is legally wedded wife of the respondent no. 1. The complainant has specifically CR No.44/14 and old CR No.149/13 Page No. 5 of 8 stated in her deposition on 28.10.2012, the respondent no. 1 Raja Bairwa met her at Nangloi market and told her that he had already remarried and he has a son from his second wife born on 16.08.2012 at M.G.S. Hospital, Punjabi Bagh. This witness stated that her marriage with respondent no. 1 is still persisting and the accused no. 1 has committed offence under Section 494 IPC by remarrying. CW3 is record clerk from MGS Hospital, Punjabi Bagh and this witness proved birth report dated 16.08.2012 of male child of Anita and Sh. Raja filled by Dr. Kalpana Tyagi as Ex. CW3/A. This witness identified the signature of Dr. Kalpana Tyagi at point A. In Ex. CW3/A, the name of Ms. Anita is mentioned as mother of child and name of Raja is mentioned as father of child. The address of mother and father of child is mentioned as H. No. 28, Extn. 2D, Nangloi, New Delhi and this is the address of respondent no. 1. Certificate of birth of child was issued by Govt. of National Capital Territory of Delhi. The name of respondent no. 1 is mentioned as father and name of mother is mentioned as Anita and the address of mother and father of child is mentioned as H. No. 28, Extn. 2D, Nangloi, New Delhi. Thus, the complainant is able to prove that son was born to Anita and respondent no. 1 on 16.08.2012.
9. At the time of issue of process the Magistrate was required to see whether there are sufficient grounds for summoning the respondent no. 1 or not. Witness CW3 has proved registration of birth certificate of child as well as birth report as Mark A and Ex. CW3/A, which show that male child was born on 16.08.2012. I am of the view that there are sufficient material on the CR No.44/14 and old CR No.149/13 Page No. 6 of 8 record to summon the respondent no. 1 under Section 494 IPC. As the complainant has not placed on record any document to show that the respondents no. 2 to 7 had attended the marriage nor any photograph or any other document has been placed on record. Thus, no ground is made out to summon respondents no. 2 to 7 under section 494 IPC.
10. Ld. MM has also dismissed the complaint under Section 506 IPC. The complainant has averred in the complaint that respondent no. 1 threatened her on 28.10.2012. In the examination the complainant had only stated that accused no. 1 also threatened her on 28.10.2012 but the complainant has not made it clear whether the respondent no. 1 extended threats of dire consequences to kill her or not. The complainant also not disclosed whether respondent no. 1 had threatened her to cause injury on her person or reputation. I am of the view that simply saying by the complainant that accused no. 1 also threatened her on 28.10.2012 is no ground to summon the respondent no. 1 under Section 506 IPC.
11. Thus, the Ld. MM was erred in not considering the birth certificate and birth report Mark A & Ex. CW3/A, which were duly proved by the CW3, who is employee of MGS Hospital. Ld. MM ignored both the documents. Thus, there are sufficient materials on record to summon the respondent no. 1 under Section 494 IPC. Thus, revision petition is partly allowed and respondent no. 1 is summoned under Section 494 IPC. With this revision petition is CR No.44/14 and old CR No.149/13 Page No. 7 of 8 disposed of.
Copy of this order be sent along with the TCR to the Ld. Trial Court with the direction to proceed further as per law against the respondent no. 1.
Revision file be consigned to Record Room, after necessary compliance.
Announced in the Open Court on 20.03.2014 (Naresh Kumar Malhotra) Additional Sessions Judge05 West/THC/Delhi CR No.44/14 and old CR No.149/13 Page No. 8 of 8