Darshan Kaur vs Shashi Bala

G.S. Chahal, J.

This order of mine will dispose of three connected petitioners Cr. M. 982M/93, Crl. M. 2883 M/93 and Crl. M725M/93, as the facts are the same in all these petitions.

All the petitioners have been arrayed as accused in a complaint titled as Shashi Bala v. Tilak Raj pending in the Court of Sh. T.R. Bansal, JMTC, Chandigarh and have been summoned by that Court to stand trial for offences under Sections 494, 109 and 114 IPC. By means of these petitions the petitioners seek quashing of the complaint as well as the summoning.

Shashi Bala respondent who is the complainant before the Court of Magistrate was married to Tilak Raj arrayed as Accused 1. According to the averments made in the complaint, the marriage of Shashi Bala was solemnised with Tilak Raj on Aug. 13. 1974 and a male child was born out of that wedlock at Patiala on June 23, 1975. The relations of the parties having become strained, Shashi Bala brought a complaint under Section 125 Cr.P.C. in which maintenance was ordered to be paid to her. Tilak Raj obtained an exparte decree for divorce by procuring a false and factious reports of serving of summons upon her. This decree is dated Feb. 28, 1983. On May 15, 1983, Tilak Raj contracted a second marriage with Darshan Kaur and for that marriage accused 3 to 8 assisted Tilak Raj, although, they knew the fact that Shashi Bala, the first wife, was alive. Shashi Bala moved an application under JUDGMENT 9 Rule 13 of the CPC for setting aside the exparte decree, which was allowed and the decree was set aside on No. 29, 1986 and the appeal against that order was also dismissed. After the setting aside of this exparte decree, divorce petition of Tilak Raj was dismissed on merits by Sh. R.S. Sharma, Additional District Judge, patiala vide his judgment dated March 30, 1989. During the proceedings for setting aside of the exparte decree. Tilak Raj and Darshan Kaur had made their statements where they had admitted the fact of their marriage inter se.

The only basis for bringing the charge under Section 494 Cr.P.C. against the present petitioners is the fact that marriage of Darshan Kaur was arranged during the life time of Shashi Bala and that the exparte decree having been set aside, the marriage of Darshan Kaur with Tilak Raj was void and the other accused had participated in that marriage.

Admittedly, at the time when the marriage of Darshan Kaur was solemnised with Tilak Raj, there was in existence an exparte decree for divorce passed in favour of Tilak Raj against Shashi Bala. There is no allegation that any of the present petitioners was a party to the fraud committed by Tilak Raj in obtaining a decree for divorce by obtaining fictitious reports about service of summons upon Shashi Bala. An exparte decree, till it is set aside, in law is as much enforceable as decree obtained on merits. There being no allegations of the present petitioner being either a party to the fraud committed by Tilak Raj on the Court in obtaining an exparte decree or the petitioners having acquired some knowledge of the decree being not valid prior to the date the marriage of Darshan Kaur was solemnised with Tilak Raj no criminal offence under Section 494 Cr.P.C. can be made out. The only person, who on the basis of the allegations made in the complaint, can be prosecuted is Tilak Raj. The present complaint cannot end in a conviction and as such the continuation of the same will amount to abuse of the process of law. I hereby accept the petitions and quash the complaint and all consequent proceedings against the present petitioners. These petitions stand disposed of.