Lovely daughter of Sikander Bhasin and ors. vs Santosh Kumari

Harbans Singh Rai, J.

This is a petition under Section 482, Criminal Procedure Code, for quashing the complaint filed by the respondent against the petitioners and others under Sections 494, 409, 109, 34 of the Indian Penal Code.

The respondent who was married with Madan Lal coaccused of the petitioners had filed a complaint against seven persons namely Madan Lal, his father Tulsi Dass, Rai Rani wife of Ram Lal, Ram Lal son of Amar Lal and the three petitioners alleging that she was married to Madan Lal on 27.5.1979 according to Hindu rites and ceremonies. The relations between the husband and wife were not cordial, so she was maltreated and neglected by Madan Lal. It is further stated in the complaint that Madan Lal has remarried with Smt. Lovely petitioner No. 1 and now they are living as husband and wife. The allegation further is that the petitioner Nos. 2 and 3 are father and mother, respectively of petitioner No. 1. The grievance of the complainant is that she being the legally wedded wife of Madan Lal, the second marriage performed by him with Smt. Lovely petitioner No. 1 is against law and amounts to an offence.

In the complaint she appeared as P.W.1 and produced Shri Om Parkash P.W. 2. The learned Magistrate vide his order dated 9.1.1987, summoned the accused (including the petitioners) under Sections 409, 494, 1109, 34 of the Indian Penal Code.

The petitioners in this petition have contended that the complainant has not said anything in the complaint or in the evidence produced by her as to whether the petitioners knew that Madan Lal was already married at the time of his marriage with petitioner No. 1. The marriage of petitioner No. 1 Smt. Lovely can amount to an offence only in a situation when she or her parents petitioners Nos. 2 and 3 performed her marriage knowing the fact that Madan Lal is already married. In the absence of any specific allegation in the complaint or in the evidence led by her as to the fact that the petitioners knew about she first marriage of Madan Lal, the marriage of petitioner No. 1 with Madan Lal will not amount to an offence.

I have heard the learned counsel for the parties. A copy of the complaint Exhibit P. 1 has been filed with this petition and the statements of Smt. Santosh Kumari complainant and Om Parkash son of Krishan Lal, who was produced by her in support of her complaint. have been attached as Annexures P. 3 and P. 4. A perusal of the complaint and the statements clearly shows that there is no allegation that the petitioners knew about the first marriage of Madan Lal, at the time of his second marriage. The basic criteria in the criminal cases is the criminal intention of the accused. In the present case that intention of the petitioners is missing. When there is no allegation that they knew that Madan Lal is already married, the marriage of petitioner No. 1 performed subsequently without knowledge of the first marriage will not amount to an offence. There is no material on the file to make out any case under Section 409, I.P.C. also.

In view of the fact that there is no allegation in the complaint or in the statements made in support of the complaint to the effect that the petitioners knew about the first marriage, their prosecution amounts to an abuse of the process of Court. In this situation, the learned Magistrate was not justified in summoning them. Accordingly, this petition is allowed and the proceedings against the petitioners are quashed. However, the proceedings. against the other co accused shall continue.