Jaspal Singh vs Sharanjit Kaur and Others

Hari Pal Verma, J.

The applicant has filed the present application under Section 378(4) read with Section 372 Cr.P.C. for grant of leave against the judgment and order dated 4.3.2014 passed by the Judicial Magistrate 1st Class, Ludhiana in a complaint case bearing No. 7/1 dated 17.1.2006 whereby the accused have been acquitted of the charges framed against them.

Briefly, stated the applicant-complainant has filed a complaint against the respondent-accused namely Sharanjit Kaur w/o Jaspal Singh, Rajinder Kaur w/o Ajaib Singh and Surinder Kaur d/o Ajaib Singh, all residents of B-IX-234, Mohalla Buta Jat, Neemwala Chowk, Subhani Building, Ludhiana. Sharanjit Kaur (accused No. 1) is the wife of the applicant, Rajinder Kaur (accused No. 2) is his mother-in-law and Surinder Kaur (accused No. 3) is his sister-in-law. The allegation against the accused are that accused Rajinder Kaur and Surinder Kaur (accused Nos. 2 and 3 respectively) informed the complainant at the time of his marriage with Sharanjit Kaur (accused No. 1) that Sharanjit Kaur is unmarried. Acting on this assurance, applicant has contracted second marriage with Sharanjit Kaur. But complainant came to know that Sharanjit Kaur was already married with one Mukesh Kumar and her earlier marriage with him had not dissolved. This fact was intentionally concealed by all the accused from the applicant-complainant, which necessitated filing of the complaint against the respondent-accused under Sections 494, 420 and 120-B read with Section 34 IPC.

On the basis of preliminary evidence, the respondents- accused were summoned to face the trial under Sections 494, 420 and 120-B read with Section 34 IPC. After the appearance of the accused persons, case was fixed for pre-charge evidence of the complainant. Thereafter, charges were framed against the accused under Sections 494, 420 and 120-B IPC. Complainant examined himself as CW1, whereas Harnek Singh examined as CW2, Gurmeet Singh as CW3 and Sunil Kumar was examined as CW4 and closed his after charge evidence by making separate statement. CW1 Jaspal Singh has stated that he was earlier married with Gurpreet Kaur d/o Joginder Singh and out of this wedlock one child was born, who is in the custody of Gurpreet Kaur. However, the first marriage was dissolved by way of decree of divorce decided vide judgment dated 4.5.1995. Thereafter, the accused Nos. 2 and 3 contacted him and his family members in order to marry accused No. 1 with him and assured the complainant that Sharanjit Kaur (accused No. 1) is unmarried and is competent to perform marriage with the complainant. Accordingly, on active assurance given by the accused Nos. 2 and 3, the applicant performed second marriage with accused No. 1 on 3.3.1996 as per Sikh rites. But after marriage, accused No. 1 had disclosed to the applicant that she was earlier married with one Mukesh Kumar son of Chaman Lal and out of that wedlock one child was also born. Photograph of Mukesh Kumar was placed on record as Ex.C-1. When the applicant inquired the matter from accused No. 1 Sharanjit Kaur, she left the company of the applicant and started living separately at her parental home. The fact remains that her marriage with Mukesh Kumar has not been dissolved and, therefore, she is not competent to perform second marriage with the applicant.

While appearing as CW1, the applicant has stated that before his marriage with accused No. 1, 2/3 meetings were arranged between the family members of the complainant-applicant and accused No. 1. From the applicant''s side his father, mother and one neighbour Gurmeet Singh had attended the meetings and a compromise was effected between him and accused No. 1-Sharanjit Kaur in the petition filed under Section 125 Cr.P.C. (Ex.D-1). The applicant deposed that he do not know about the fact if any panchayati divorce was effected between Mukesh Kumar and Sharanjit Kaur or not. He admitted the fact that accused No. 1 Sharanjit Kaur belongs to ''Nai'' caste and in their Biradri (community) panchayati the learned defence counsel. CW2 Harnek Singh deposed that he is father of the complainant and his son performed first marriage on 7.4.1991 with one Gurpreet Kaur, which was dissolved by decree of divorce. It is only after that accused Nos. 2 and 3 contacted him and his son for marriage with their daughter i.e. accused No. 1 Sharanjit Kaur. At that time it was informed that Sharanjit Kaur is unmarried. Believing it to be correct position, he married his son with accused No. 1 on 3.3.1996. Similarly, CW3 Gurmeet Singh deposed that he know Jaspal Singh being his neighbour and his marriage was performed with accused No. 1 on 3.3.1996 in accordance with Anand Karaj and he attended the same. He further deposed about the earlier marriage of the applicant-complainant with Gurmeet Kaur. CW4 Sunil Kumar who is elder brother of Mukesh Kumar i.e. earlier husband of Sharanjit Kaur, has deposed that he had attended the marriage of his brother Mukesh Kumar with Sharanjit Kaur and out of said wedlock one daughter was born. He further deposed that after few years of marriage, Sharanjit Kaur left the company of his brother and later on she got married with applicant-complainant. He identified the photographs of Mukesh Kumar and Sharanjit Kaur in Ex.C1. He further deposed that a compromise was effected between Mukesh Kumar and Sharanjit Kaur as Mark ''A''.

Statement of accused as provided under Section 313 Cr.P.C. was recorded, to which they did not plead guilty and claimed trial. They pleaded that the allegations levelled by the complainant are totally false and concocted and Jaspal Singh has falsely implicated them in this case only to harass them. The accused have pleaded that no offence has been committed by them as alleged by the complainant. Both the parties were earlier married and before performing marriage with each other, both were well within their knowledge the fact that they were previously married but still the complainant has filed the present complaint for taking revenge from the accused as she earlier filed a complaint against him.

In order to prove the offence under Section 494 IPC, the complainant is required to establish that both the marriages pleaded by him or her were solemnized in accordance with the customary rites and ceremonies, either prescribed by the Hindu Law governing the parties to recognized by the custom prevailing in the community to which the parties belongs. The admission of either the first or the second marriage by the accused is no evidence of the marriage. The trial Court vide judgment dated 4.3.2014 has dismissed the complaint and acquitted the accused of the charges.

The judgment dated 4.3.2014 was challenged by way of an appeal by the present complainant. However, the same was dismissed as withdrawn to file the present appeal.

In the case in hand, in order to bring home guilt of accused persons, the complainant is required to prove that accused No. 1 had contracted first marriage and she again performed marriage with him without dissolving her first marriage and her spouse is still living. In order to prove first marriage of accused No. 1 he is required to establish on record validity of her first marriage, which cannot be established in absence of proof of essential ceremonies of that marriage.

Learned counsel for the applicant-complainant has stated that accused No. 1 was earlier married but this fact was concealed from him, therefore, the accused are guilty of offence under Section 494 IPC.

Though the applicant-complainant has alleged that accused No. 1-Sharajnit Kaur has performed marriage with Mukesh Kumar without dissolving the earlier marriage. She performed second marriage with the complainant without disclosing the fact of subsistence of her first marriage. However, the applicant-complainant failed to prove on record the proof of essential ceremonies of marriage of accused Sharanjit Kaur with her earlier husband Mukesh Kumar. Instead of proving his case, the applicant-complainant stepped into the witness box as CW1 proved on record mark ''A'', the copy of decree of divorce passed by the Additional Sessions Judge, Ludhiana dated 4.5.1995 to show that he dissolved his first marriage before performing marriage with accused No. 1-Sharanjit Kaur. In order to prove the first marriage of accused No. 1 he has proved on record the photographs of said Mukesh Kumar as Ex.C1. He could not prove essential ceremonies of marriage of accused No. 1. Particularly, when the complainant-applicant deposed that he knew Mukesh Kumar, husband of accused No. 1-Sharanjit Kaur and his residential address, but the applicant instead of examining Mukesh Kumar, preferred to examine Chaman Lal, who deposed about the factum of first marriage of accused No. 1-Sharanjit Kaur with his brother Mukesh Kumar. But at the same time this witness has admitted that his brother Mukesh Kumar and accused No. 1 belong to Nai'' caste and in their community panchayati divorce is admissible. The law is very much clear on the point of applicability of scholars and law experts. As per Hindu law administered by castes in India, divorce was not recognized as a means to put an end to the marriage, which was considered to be a sacrament, with only exception where it is recognized by custom. Since in the present case, the parties have admitted the factum that panchayati divorce is admissible in their community and well recognised. If the first marriage of accused No. 1 has already been dissolved then no question of commission of offence under Section 484 IPC by accused No. 1 is made out. Applicant-complainant has failed to prove her first valid marriage with Mukesh Kumar, but even if there is presumption of first valid marriage of accused No. 1, still in view of the admitted document of divorce, the panchayati divorce executed between the accused No. 1 and her first husband Mukesh Kumar, it cannot be said that she had first valid marriage existing at the time of heer second marriage.

Hence, this Court finds that the accused are not guilty under Section 494 IPC and no interference is warranted in the judgment dated 4.3.2014 passed by learned Additional Sessions Judge, Ludhiana.

The present application is dismissed.

Since the application for leave to appeal has been dismissed on merits, no further order is required to be passed in the application under Section 5 of the Limitation Act for condonation of delay in filing the appeal.