Manphool vs Kaushalaya

Harmohinder Kaur Sandhu, J.

This order wilt also dispose of Criminal Revision No. 554 of 1988 Ram Kumar and others v. Smt. Kaushlya Devi, as in both the revision petitions the same orders have been assailed.

Smt. Kaushalya wife of Bir Bhan filed a complaint under Sections 494, 109 and 106 Indian Penal Code against Ram Kumar and others, alleging that she was married to Bir Bhan accused No. 3 on 1961981 and there she resided with her husband in village Bhaini Amirpur. Her in laws were not happy with her and she was turned out of the house after she was given beating. The dowry articles given to her were also retained by accused Nos. I to 4. On 1321987 her husband Bir Bhan contracted second marriage with accused No. 4 Santosh alias Guddi. The second marriage was performed with the conivance of the other accused.

After preliminary evidence was recorded, the SubDivisional Judicial Magistrate, Hansi summoned only accused No. 3 to face trial for an offence under Section 494 Indian Penal Code. Against this order dated 17111987 Kaushalya filed a revision petition which was decided by the learned Additional Sessions Judge, Hissar who sent back the case to the trial Court for further proceedings. Thereafter the Sub Divisional Judicial Magistrate, Hansi vide his order dated, 261988 summoned all the accused to stand trial for an offence under Section 494 Indian Penal Code. Against the order of learned Additional Sessions Judge and that passed by Sub Divisional Judicial Magistrate, Hansi summoning all the accused, the accused filed the present petitions except Bir Bhan. The orders which have been assailed are Annexures P/2 and P/3.

During the pendency of these revision petitions Kaushalya Devi died. The learned counsel for the petitioners produced copy of death entry of Kaushalya Devi daughter of Om Parkash which shows that she expired on 381990. None represented Kaushalya Devi in these revision petitions.

While addressing arguments the learned counsel for the petitioners did not assail the order Annexure P/2 vide which the Additional Sessions Judge, Hissar sent the case back to the trial Court for further proceedings in the light of observations made by him. Even otherwise, the order is quite valid and legal and the observations made therein are proper.

The solitary contentions of the learned counsel for the petitioners was that except Bir Bhan the husband of Kaushalya Devi no other petitioner was primafacie liable for the offence of bigamy. The petitioners who were parents of Bir Bhan, the alleged second wife and her parents were not liable for the commission of an offence under Section 494 Indian Penal Code and the impugned order of the Sub Divisional Judicial Magistrate was liable to be set aside on this short ground.

Section 494 IPC reads :

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."

The above provisions of Section 494 Indian Penal Code make it clear that only that husband is liable for the offence of bigamy who marries again during the life time of his first wife when the first marriage subsists. The offence under Section 494 Indian Penal Code, therefore, could not be committed by the relatives of the husband contracting second marriage. They would be summoned for abetment of the offence if there was evidence to make out a primafacie case to that effect but the order summoning them to stand trial for the offence under Section 494 iP.C. was not valid and could not be maintained.

As a result I accept both the revision petitions and set aside the order dated 2.5.1988 passed by Sub Divisional Judicial Magistrate, Hansi qua the present petitioners. If the complaint is still being perused the trial Court will proceed against the petitioners in accordance with law.