Perumal Pillai and 2 Others vs M. Sivakami and Amuda

Arunachalam, J.—Petitioners, eight in number, are the accused in C.C.No.3 of 1989, on the file of the learned Chief Judicial Magistrate,

Kanyakumari at Nagercoil. On a private complaint instituted by the respondent, they are being prosecuted for alleged commission of offences

punishable under Ss.494, 498-A and 406 of the Indian Penal Code. The respondent had married the third petitioner according to Hindu rites on

45.1986, at Velli Thambala Kattalai Thirumana mandapam, in Vadiveeswaram village in Kannyakumari District. The second petitioner is the sister

of the third Petitioner, while the first petitioner is the husband of the second petitioner. 8th petitioner is alleged to have married the third petitioner

on 27.3.1988, at Madurantakam in Chengalpattu District, while the marriage of the third petitioner with the respondent was in subsistence. It is the

case of the complainant that the other petitioners conspired with petitioners 1 to 3 in arranging for the bigamous marriage between the third

petitioner and the eighth petitioner. The complaint of the respondent show that after her marriage with the third petitioner she was taken to Cheyyur

in Chengalpattu District, where her husband was running a tea stall. Her husband did not treat her with affection. Petitioners 1 and 2 joined her

husband in illtreating and torturing her. She was beaten and forced to starve. They made her to part with her jewels one after another, in the guise

of settling the loans they had obtained in connection with her marriage. They further demanded from the respondent Rs.10,000/- for arranging the

marriage of the niece of the second petitioner. When the respondent expressed her inability, petitioners 1 to 3 not only ill-treated her, but also beat

her. The respondent was then pregnant and apprehending that she may collapse, petitioners 1 to 3 admitted her in the hospital. Respondent''s

mother nursed her and a child was born on 6.6.1987. Not only the third petitioner did not visit even to have a look at his child, but also refused to

take her back to the matrimonial told, inspite of the efforts taken by her parents. When medial ors intervened, the third petitioner demanded

Rs.10,000/- as condition precedent, to facilitate the return of the respondent to his house, failing which he would enter into a second marriage. The

complaint further stales, that the jewels of the complainant were misappropriated. On the averments in the complaint, the learned Magistrate took

cognizance of the offences aforestated, after recording the sworn statement of the respondent.

In this petition preferred under S.482 Cr.P.C. to call for the records and quash the pending prosecution as not maintainable and an abuse of

process of court, Mr. K. Asokan, learned counsel appearing on behalf of the petitioners, urged the following three contentions:

(i) the respondent was not an eye witness to the bigamous marriage. If that be so, before cognizance was taken evidence ought to have been made

available through some one, who was aware of the bigamous marriage. On the ground of lack of legal evidence, the pending prosecution has to be

quashed.

(ii) the offences punishable under Ss.498-A and 406 of the Indian Penal Code relates to the marriage of the third petitioner with the respondent,

while the offence punishable under S.494 of the Indian Penal Code relates to a different transaction altogether and hence these two classes of

cases, cannot be combined together in a single transaction and a consolidated complaint filed.

(iii) the bigamous marriage having taken place at Madurantakam, the Chief Judicial Magistrate, Nagercoil will not have jurisdiction to try the charge

of bigamy, since the offence, admittedly, was committed outside his jurisdiction.

On these contentions, I have heard Mr. S.V.K. Thampi, learned counsel appearing on behalf of the respondent. He contended that to facilitate

cognizance if the averments in the complaint, disclosed the offences alleged, that would be sufficient and hence the first ground urged cannot be

upheld. On the second ground, he fairly slated that in respect of two different transactions, a single complaint has been filed and, therefore, the

respondent should be given an opportunity to split up her complaint. The present prosecution could be restricted, to offences punishable under

Ss.498-A and 406 of the Indian Penal Code, while a fresh complaint on the same facts could be instituted by the respondent, against all the

petitioners, before the same Magistrate to be tried along with C.C. No. 3 of 1989. On the last contention, submitted that the provisions of

S.182(2) Cr.P.C. would furnish jurisdiction to the Chief Judicial Magistrate, Nagercoil to take cognizance of the offence of bigamy, since the

respondent was residing permanently within the jurisdiction of the said Magistrate.

I have carefully considered the divergent contentions of the defence and prosecuting counsel.

The first ground cannot enure in favour of the petitioners, in view of the law laid down by the Apex Court in Dhanalakshmi v. Prasanna Kumar

1990 Crl.L.J. 320. That was a case in which the Magistrate took cognizance of a complaint, for offences under Ss.494 and 496 etc. of the Indian

Penal Code, filed by the wife. Specific allegations were found in the complaint disclosing ingredients of those offences. The High Court quashed the

proceedings under S.482 Cr.P.C. The Supreme Court observed, ""that in proceedings instituted on complaint, exercise of the inherent power to

quash the proceedings is called for only in cases where the complaint does not disclose any offence or was vexatious or oppressive. If the

allegations set out in the complaint do not constitute the offence of which cognizance was taken by the Magistrate, it was open to the High Court to

quash the same in exercise of the inherent powers under S.482 Cr.P.C. It was not, however, necessary that there should be a meticulous analysis

of the case, before the trial to find out whether the case would end in conviction or not. The complaint has to be read as a whole. If it appears on a

consideration of the allegations, in the light of the statement on oath of the complainant that ingredients of the offence offences are disclosed and

there is no material to show that the complaint is malafide, frivolous or vexatious, in that event there would be no justification for interference by the

High Court. Applying the principles enunciated by the Apex Court, it is clear that not only the averments in the complaint but also the contents of

the sworn statement of the respondent, prima facie indicate the availability of ingredients, constituting the offences complained of. The first

contentions is, therefore, rejected.

As far as the second contention is concerned, I find sufficient force. Petitioners 4 to 8 have no connection whatever, with alleged commission of

offences punishable under Ss.498-A and 406 of the Indian Penal Code. These two offences arise out of the marriage of the respondent with the

third petitioner and were allegedly committed even before the bigamous marriage between the eighth petitioner and the third petitioner was

performed at Madurantakam. Not only the transactions relating to the two sets of offences are different, but also there is patent misjoinder of

persons and offences alleged. If that be so, C.C. No. 3 of 1989 will have to be restricted to petitioners 1 to 3 alone, who are alleged to have

committed offences punishable under Ss.498-A and 406 of the Indian Penal code arising out of the marriage between the third petitioner and the

respondent. The pending complaint in so far as it concerns petitioners 4 to 8 will have to be necessarily quashed in respect of those offences alone.

Since I have already held, that the offence of bigamy relates to an altogether different transaction, the charge of bigamy even in respect of

petitioners 1 to 3, cannot be gone into in the pending prosecution. However, it does not mean that the respondent will not be entitled to prosecute

petitioners 1 to 3 along with other petitioners for the offence of bigamy in a separately instituted complaint. We cannot overlook that the Chief

Judicial Magistrate, who has jurisdiction to try all the petitioners for the variety of offences mentioned in the complaint, had taken cognizance of all

the three offences. The need for a separate complaint arises only because there is a misjoinder, as stated earlier. It will be open to the respondent

to institute a separate complaint for the offence of bigamy against all the petitioners, which is bound to be taken cognizance of by the same

Magistrate for disposal in accordance with laws

The third contention deserves rejection. S. 182(2) Cr.P.C. reads as hereunder:

Any offence punishable under S.494 or S.495 of the Indian Penal Code may be inquired into or tried by a court within whose local jurisdiction the

offence was committed or the offender last resided with his or her spouse by the first marriage or the wife by the first marriage, has taken up

permanent residence after the commission of the offence.

Mr. K. Asokan, learned counsel for the petitioners, contended that the last limb of this section should be applied only when subsequent to the

commission of the offence, the wife by the first marriage had taken up permanent residence within the jurisdiction of the court taking congnizance.

He, therefore, argued that the respondent who had already gone to her parents house long prior to the bigamous marriage, cannot claim that she

had taken up permanent residence after the commission of the offence, to furnish jurisdiction to the Chief Judicial Magistrate, Nagercoil. I am

unable to agree. S.182(2), Cr.P.C. was brought into the statute book only with effect from 18.12.1978. A perusal of the Objects and Reasons

which led to the introduction of S.182, Cr.P.C. in 1974 and further inclusion of S.182(2), Cr.P.C in 1978 will show that in the absence of a

special provision the aggrieved wife may have to face undue obstacles placed by the bigamist. It may be easy for the bigamist to go to a distant

place, get the second marriage performed and return with impunity to reside in the very same place, along with his second spouse, where his wife

was residing. Since bigamy was conceived as an offence against the institution of marriage in which the society is concerned, it was found

necessary that practical opportunity to bring offenders before the courts should not be denied by restricting the venue to local areas, where the

bigamous marriage was actually performed. In that view, originally jurisdiction was extended to the place where the offender last resided with his

or her lawfully married spouse. In 1978, a further amendment was felt necessary to enable complaint by a woman relating to an offence of bigamy,

to be made at the place of permanent residence after the commission of the offence, instead of at the place where she last resided with her

husband. While looking into the jurisdiction sought to be conferred under S. 182(2) Cr.P.C. in respect of matrimonial offences, we have to take

into consideration similar provisions made in S.126 Cr.P.C., to facilitate the neglected wife, preferring a petition under S.125 Cr.P.C., at the place

where she resides. The conferment of jurisdiction for offences under Ss.494 and 495 of the Indian Penal Code and for preferring petitions under

S.125 Cr.P.C., has a social purpose behind it and the object is apparently that the aggrieved wife should not be forced to run from pillar to post to

prosecute a bigamist husband and his associates, or face untold suffering, in the matter of claiming maintenance. The provisions of S.182(2)

Cr.P.C. will have to receive liberal interpretation, if the object for which this section was introduced has to be given its due meaning. The question

is not really whether the wife of the first marriage has taken up permanent residence away from her husband technically either before or after the

commission of the offence. The crux of he matter appears to be that subsequent to the commission of the offence she must have a permanent

residence within the jurisdiction of the particular court, where she chooses to initiate prosecution.

The High Court of Andhra Pradesh had occasion to consider this question in Tekumalla Muneiah and Others Vs. Chittari Babunuri

Ammanamma and Another, . In that case the first wife was residing at a particular place before the commission of the offence and continued to live

there subsequent to the bigamous marriage of her husband. The learned Judge held that the wife must be deemed to have taken permanent

residence at that place and hence the complaint could be entertained by the court having territorial jurisdiction over such place. The learned judge

further observed that merely because the section refers to the place where the first wife takes a permanent residence after the commission of the

offence, it cannot be said that the wife who was living at that place earlier to the commission of the offence and continues to do so even after

commission of the offence, was not residing at that place after the commission of the offence. As I have already stated, the provisions of S.182(2)

Cr.P.C. will have to be given a liberal construction in consonance with the purpose sought to be achieved. The view I have taken gets reflected in

the judgment of the Andhra Pradesh High Court in Takemulla Muneiah''s case (supra). Since I have held that the Chief Judicial Magistrate,

Nagercoil, has jurisdiction to entertain the complaint for bigamy for the respondent is living permanently within the jurisdiction of that court, there

can be no impediment whatever in the respondent preferring a private complaint for the offence of bigamy against all the petitioners. Taking

cognizance of by the same Magistrate, who had already taken cognizance of the said offence in C.C. No. 33 of 1989 is merely one of procedure

in view of misjoinder persons and offences earlier in one complaint the transactions being different. While upholding the right of the respondent to

Tile a separate complaint against all the petitioner for the offence or bigamy, to be taken cognizance of by the Chief Judicial Magistrate

Kanyakumari at Nagercoil, I allow this petition in respect of all the petitioners as far as the offence under S.494 of the Indian Penal Code is

concerned and also quash the prosecution against petitioners 4 to 8 in respect of offences under Ss.498-A and 406 of the Indian Penal Code. To

reiterate, the quashing of this complaint in so far as it relates to the offence of bigamy does not prohibit taking cognizance of the said offence by the

Chief Judicial Magistrate, Kanyakumari at Nagercoil, against all the petitioners in the event of a fresh complaint being instituted on the same facts,

by the respondent. This petition is ordered in the manner indicated above.