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Madhya Pradesh High Court

Tapas Kumar Majumdar vs The State Of Madhya Pradesh on 28 March, 2016

 HIGH COURT OF MADHYA PRADESH : AT JABALPUR
                             M.Cr.C.No.4025/2014
                                       Tapas Kumar
                                                vs.
                                       State of M.P.
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Present:- Hon'ble Shri Justice C.V. Sirpurkar
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Shri Anuvad Shrivastav, counsel for the applicant.
Shri A.K. Singh, Panel Lawyer for the respondent no.1/State.
Shri Manish Dutt, Senior advocate with Shri Pushpendra
Dubey, counsel for the respondent no.2/complainant.
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                                          ORDER

(28-03-2016)

1. This miscellaneous criminal case has been instituted on an application under Section 482 of the Code of Criminal Procedure filed on behalf of the accused persons Tapas Kumar, Ashish Kumar and Arpana Majumdar for quashing the criminal case no. 21393/2013 pending before the Court of Chief Judicial Magistrate, Jabalpur, under Sections 419, 496, 376 and 498-A read with Section 34 of the I.P.C.

2. The facts necessary for disposal of this miscellaneous criminal case may be summarized as hereunder the First informant/respondent no. 2 Chandana Bhatacharya lodged a written report in Police Station Omti, District Jabalpur on 16.10.2013 to the effect that Petitioner no.1 Tapas Kumar had published an advertisement in Bharat Matrimonial (Bangla Section) representing himself to be divorced. Accused no. 2 Ashish Kumar is brother of Tapas Kumar and petitioner no.3 Arpana is the wife of Ashish Kumar. The petitioners Tapas Kumar, Ashish Kumar and Arpana Majumdar personally assured her that petitioner Tapas Kumar had married only once and he had obtained divorce from his first wife Pali Rani and has never married thereafter. Whereon respondent no. 2 Chandana married the accused/petitioner no. 1 Tapas Kumar Majumder by Hindu rites in Arya Samaj, Dayanand Bhawan, Napear Town, Jabalpur, on 22.10.2011. After the marriage of the petitioner Tapas Kumar with respondent Chandana, he indulged in marital intercourse with her till 4.5.2012 at Jabalpur and at Mussoorree. During that period, petitioner Tapas Kumar tortured her and inflicted cruelty upon her; therefore, respondent Chandana left him and returned to her matrimonial home at Raipur on 5.5.2012. Petitioner Tapas Kumar moved an application under Section 9 of the Hindu marriage Act; thereafter, on telephone, the husband and wife agreed to obtain divorce by mutual consent. Consequently, an application under Section 13-B of the Hindu Marriage Act was moved in family Court at Dehradun on 12th July, 2013 and the petitioner Tapas Kumar withdrew his application under Section 9 of the Hindu Marriage Act. On examination of facts, she learnt that the petitioner Tapas Kumar had married Pali Rani on 23-2-2000 and had obtained divorce from her on 10-1-2007. He has two sons from Pali Rani. He married the Sanghmitra on 17.5.2011 and his marriage with Sanghmitra was subsisting on 22.10.2011 i.e. the date on which petitioner Tapas Kumar had entered into marriage with respondent Chandana. In fact, Family Court Dehradun passed an ex parte order for dissolution of marriage between Tapas Kumar and Sanghmitra under Section 12 of the Hindu Marriage Act, on 1.9.2012. Thus, petitioner Tapas Kumar married the respondent Sanghmitra by concealing facts and making misrepresentation in respect of material facts and by practicing deception. Thereafter, he continued to mentally and sexually exploit her. Had she known that his marriage with Sanghmitra is still subsisting, she would never have consented to marry him and would never have allowed him to establish physical relations with her. Petitioners Ashish Kumar and Aparna joined petitioner no.1 Tapas Kumar in deceiving respondent Chandana into marrying Tapas.

3. On the basis of aforesaid written report, crime number 394/2013 was registered in Police Station Gomti, District Jabalpur, against petitioners under Sections 419, 496, 376 and 498-A read with Section 34 of the I.P.C. and after investigation, final report was filed. The criminal case is pending in the Court of CJM, Jabalpur.

4. The continuation of criminal case no.2139/2013 in the Court of C.J.M. Jabalpur has been challenged before this Court under Section 482 of the Code Criminal Procedure, mainly on following two grounds:

(1) Petitioner Tapas Kumar had sexual intercourse with respondent Chandana with her own free will and accord. In the alternative, as per her own affidavit, she was incapable of having sexual intercourse; therefore, the offence of rape was not constituted.

(2) As per respondent Chandana’s own case her marriage to petitioner Tapas Kumar was void by virtue of Section 5 (i) of the Hindu marriage Act, 1955, because it was solemnized during the subsistence of his earlier marriage to Sanghmitra; therefore, for want of a valid marriage between the parties, no offence under Section 498-A would be made out.

5. It is true that the sexual intercourse committed by petitioner Ashish with respondent Chandana during the period of their stay together was not without her consent or against her will. However, it is obvious that she consented to the same because she believed that she was lawfully married to him. Due to concealment of material facts and the deception practiced upon her, she was not aware of the fact that his earlier marriage was subsisting and her marriage to petitioner Tapas Kumar was not lawful and was in fact void. Thus, the consent was clearly granted under misconception of facts.

6. The Apex Court has held in the case of Bhupendra Singh Vs. Union Territory of Chandigarh (2008) 8 SCC 531 has held hereunder:

15. Clause “Fourthly” of Section 375 IPC reads as follows:

“375. Rape.—A man is said to commit ‘rape’ who, except in the case hereinafter excepted, has sexual intercourse with a woman under circumstances falling under any of the six following descriptions— *** Fourthly.—With her consent, when the man knows that he is not her husband, and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married. * * *”

16. Though it is urged with some amount of vehemence that when the complainant knew that he was a married man, clause “Fourthly” of Section 375 IPC has no application, the stand is clearly without substance. Even though the complainant claimed to have married the accused, which fact is established from several documents, that does not improve the situation so far as the appellant-accused is concerned. Since he was already married, the subsequent marriage, if any, has no sanctity in law and is void ab initio. In any event, the appellant-accused could not have lawfully married the complainant. A bare reading of clause “Fourthly” of Section 375 IPC makes this position clear.

17. It is pointed out by learned counsel for the appellant that the date of knowledge claimed by the complainant is 6-3-1994, but the first information report was lodged on 19-9-1994. The complainant has explained that she delivered a child immediately after learning about the incident on 16-4-1994 and, therefore, was not in a position to lodge the complaint earlier. According to her she was totally traumatised on learning about the marriage of the appellant-accused. Though the explanation is really not satisfactory, but in view of the position in law that the accused was really guilty of the offence punishable under Section 376 IPC, the delayed approach of the complainant cannot, in any event, wash away the offence.

7. A Coordinate Bench of this Court in case of Sulekha Singh Vs. State of M.P. (order dated 19.12.2013 passed in criminal revision numbers 309, 437 and 589 of 2013 has held in the similar circumstances, relying upon the case of Bhupendra Singh ( supra) that on the plain reading of Section 375 (fourthly) of the I.P.C. it is apparent that accused gave an impression to the prosecutrix that she was his legally wedded wife; therefore, she permitted him to have intercourse with her. In these circumstances, the accused prima facie has committed offence under Section 376 of the I.P.C. In the case of Bhupendra Singh (supra) the prosecutrix was aware of the fact that her husband was already married, yet the Apex Court has held that the accused was guilty of offence under Section 376 of the I.P.C.

8. In the instant case, the respondent no.2 is allegedly deceived by the petitioners and was thus under the impression that she was lawfully married to the petitioner no.1. Thus, prima facie, there is nothing to hold that there is no ground for proceedings against the petitioners under Section 376 or 376 read with Section 34 of the I.P.C.

9. In this regard, another argument has been advanced on behalf of the petitioners. The petitioners have invited attention of the Court to the “Affidavit cum Declaration” dated 4 th July, 2012 sworn by respondent no.2 Chandana Bhatacharya. The authenticity of the document has not been contested by the respondent no.2; therefore, the Court shall take this document (Document No.3 annexed to the petition) into consideration. The relevant averments made in the affidavit cum declaration sworn by respondent no.2 Chandana are as hereunder:

“(3) I do not feel any sexual excitement, do not have sexual desire or arousal, unable to engage in sexual intercourse and I am not interested for any sexual relationship which is leading to unhappy married life and incompatibility with my husband.

(4) I have consulted with different psychiatrist doctor during last 9 years. My parents has taken me to psychaitrist. Doctor reported that I have psychiatric disorder. (5) I have consulted with psychaitrist Dr. Arunangsu Parial, clinic at chhoti line, near Railway crossing, Raipur, Chhattisgarh, since last four years and the doctor told that I am suffering from mental illness and it is a lifelong problem.

According to the advise of Doctor I am taking medicine Asprito and omlimet.

(6) Since doctor told me that my psychiatric disorder still existing, and this mental illness is a lifelong problem, I am continuing to consume the medicine Asprito and olimet according to the doctor's advise.

(7) I have consulted with another psychiatrist Dr. Manish Tomar on 02.06.2012, at Max super hospital, Dehradun who advised me to continue the same medicine.

(8) My mental illness started before my first marriage (before 27.1.2005) and I agreed for mutual divorce from my first husband in first marriage because of my inability to engage in sexual intercourse, my impotency and also because of my mental illness. I am consuming antipsycosis medicine since last 9 years.

(9) My parents are keeping the file containing most of the medical records about my psychiatric disorder. (10) My husband (Tapas Kumar Majumder, residing in Institute of Technology Management, P71/4, Landour Cantt., Mussoorie-248179) have sexual desire, have normal erection of penis, have sexual excitement and capable for normal sexual intercourse. Since I have no sexual excitement and unable to engage in sexual intercourse, my married life become extremely unhappy and leading to incompatibility with my husband.”

10. A bare perusal averments made in aforesaid affidavit by respondent no.2 Chandana makes its abundantly clear that her admissions essentially relate to her inability to enjoy sexual intercourse and not her incapacity to engage in sexual intercourse. The condition is commonly known as frigidity. Frigidity by itself does not imply incapacity to engage in sexual intercourse. Incapacity to engage in sexual intercourse due to some physical deformity is not explicitly stated in the affidavit. There is no presumption that a women suffering from frigidity cannot be subjected to sexual intercourse or rape. Thus, at least at preliminary stage of a trial, the proceedings under Section 376 of the I.P.C. cannot be interdicted simply because the prosecutrix is admittedly suffering from frigidity.

11. The second ground that has been taken on behalf of the petitioner is that as per the case of respondent no.2 as put- fourth in her written report, the marriage of the respondent no.2 to the petitioner was void as it was solemnized during the subsistence of the earlier marriage of the petitioner Tapas Kumar to one Sanghmitra; therefore, the offence under Section 498-A of the I.P.C. would not be made out because there was no relationship of husband and wife between the parties in the eyes of law. It has further been contended that Section 498-A being a penal provision, the language thereof has to be strictly construed. Where, from the written report lodged by the wife herself, it is clear that there was no relationship of husband and wife between Tapas Kumar and Chandana, there is no question of an offence under Section 498-A of the I.P.C. being constituted.

12. The complete answer to aforesaid arguments may be found in the observations made by the Apex Court in the case of Koppisetti Subbharao Vs. State of Andra Pradesh (2009) 12 S.C.C. 331 wherein the Supreme Court had observed as follows:

“The essential ingredient constituting the offence of bigamy is the ‘marrying’ again during the lifetime of husband or wife in contrast to the ingredients of Section 498-A which, among other things, envisage subjecting the woman concerned to cruelty. The thrust is mainly on ‘marrying’ in Section 494 IPC as against subjecting of the woman to cruelty in Section 498-A. Likewise, the thrust of the offence under Section 304-B is also on ‘dowry death’. Consequently, the evils sought to be curbed are distinct and separate from the persons committing the offending acts and there could be no impediment in law to liberally construe the words or expressions relating to the persons committing the offence so as to rope in not only those validly married but also anyone who has undergone some or other form of marriage and thereby assumed for himself the position of husband to live, cohabit and exercise authority as such husband over another woman” “The present application was filed before the High Court taking the stand that the complainant was not the legally wedded wife of the appellant as he was already married and, therefore, Section 498-A has no application to the facts of the case.” “It would be appropriate to construe the expression ‘husband’ to cover a person who enters into marital relationship and under the colour of such proclaimed or feigned status of husband subjects the woman concerned to cruelty or coerces her in any manner or for any of the purposes enumerated in the relevant provisions—Sections 304-B/498-A, whatever be the legitimacy of the marriage itself for the limited purpose of Sections 498-A and 304-B IPC. Such an interpretation, known and recognised as purposive construction has to come into play in a case of this nature. The absence of a definition of ‘husband’ to specifically include such persons who contract marriages ostensibly and cohabit with such woman, in the purported exercise of their role and status as ‘husband’ is no ground to exclude them from the purview of Sections 304-B or 498-A IPC, viewed in the context of the very object and aim of the legislations introducing those provisions.”

13. It is clear from aforesaid observations that unlike Section 494 of the I.P.C. the essence of offence under Section 498-A lies in subjecting a women to cruelty and not in marrying her. Thus, the expression “husband” occurring in Section 498-A should be construed to include a person who enters into martial relation and under the guise of such assumed status of husband, inflicts cruelty upon the women, regardless of the legitimacy of marriage itself. Unless such purposive construction is put on term “husband” the very object and purpose of the legislature in introducing provisions like 304-B or 498-A of the I.P.C., would be defeated. Thus, the petitioners are not entitled to any relief on the ground of marriage between the parties being admittedly void ab initio.

14. In aforesaid view of the matter, no interference in the criminal proceedings before the trial Court in exercise of inherent powers of the High Court is warranted.

15. Consequently, this miscellaneous criminal case instituted on an application under Section 482 of the Code of Criminal Procedure is dismissed.

(C.V. Sirpurkar) Judge (C V SIRPURKAR) JUDGE