Raj Pal Singh and anr. vs Raj Dulari alias Rajeshwari Singh

S. S. Grewal, J.

In this petition under Section 482 of the Code of Criminal Procedure, 1973 (hereinafter referred to as the Code) read with Article 227 of the Constitution of India the petitioners have sought quashment of the complaint under Section 494 read with Section 109 Indian Penal Code (Annexure P1) together with consequent proceedings including the order dated 1981989 passed by Judicial Magistrate Ist Class, Karnal (Annexure P2), whereby, the charge against the accused including the present petitioners was ordered to be framed under Sections 194, 495 read with Section 109 of the Indian Penal Code.

In brief, facts relevant for disposal of this case as emerge from the complaint lodged by Smt. Raj Dulari alias Rajeshwari Singh, are, that she was married to Dharam Pal coaccused of the petitioners at Karnal on 8.5.1985 at 3.00 p. m. according to Hindu rites. She came to know later on that Dharam Pal was already married to Smt. Sheela Devi, who, was still alive and was legally wedded wife of Dharam Pal. The petitioners and their other co accused are alleged to have concealed this fact from the father of the complainant, a Class I Officer in the Central Government, with a view to get good dowry from him. It was further pleaded that the marriage of the complainant with Dharam Pal (who died late on) was null and void, and that Dharam Pal aforesaid had committed the offence of bigamy, whereas, his other coaccused including the petitioners had abetted the commission of offence of bigamy.

Learned counsel for the parties were heard.

It was submitted on behalf of the petitioners that there is no specific mention in the complaint either about the date, month, or the time when the first, marriage of Dharam Pal with Smt Sheela Devi was solemnized. Nor there is any specific allegation about the essential ceremonies which were performed at the time of the solemnization of !he marriage. Nor any evidence in this regard has been produced on the record. It was next submitted that were production of the copy of the application under Section 125 Criminal Procedure Code by Sheela Devi concerning her alleged marriage with Dharam Pal; or, any other documentary evidence produced in this would not be sufficient to prove the factum of first marriage of Dharam Pal with Sheela Devi. It was further submitted that for similar reasons the second marriage of Raj Dulari complainant with Dharam Pal has not been duly proved on the record. It was essential for the complaint to plead as well as to prove the form of the first marriage of Dharam Pal with Sheela Devi, as well as his subsequent marriage with the present complainants.

In Full Bench authority of this Court, Atma Ram v. Smt. Kalawati, (83) PLR 1981, page 719, it was observed that Section 7 of the Hindu Marriage Act, 1955, provides that a Hindu marriage may be solemnized in accordance with the customary rites and ceremonies of either party thereto. It has further been provided that such rites and ceremonies include the Saptapadi, that is, the taking of seven steps by the bridegroom and the bride jointly before the sacred fire, the marriage becomes complete and binding when the seventh step is taken. Thus it is to be seen that with a view to prove the second marriage, it is necessary to plead as to the form of the marriage between the parties. Hence, where there was no averment made in the pleadings with regard to the form of the marriage between the parties and there was no evidence that they were living together as husband and wife, the finding regarding the second marriage cannot be returned. Reliance in this respect was placed on the authority of the apex Court in Smt. Priya Bala Ghosh v. Suresh Chandra Ghosh, AIR 1971 SC 1153.

In Lingari Obulamma v. Venkata Reddy and others, AIR 1979 SC 848, it was held by their Lordships of the Supreme Court that where there was absolutely no evidence to prove that any of the two essential ceremonies i.e. Datta Homa and Saptapadi bad been performed at the time of second marriage and the existence of the custom in the community to put the `Yarn Thread'' instead of `Mangal Sutra'' was neither mentioned in the complaint, nor, proved in the evidence, the conviction under Section 494 I.P.C. could not be sustained.

It was held by Single Bench of this Court in case Resham Singh and anr. v. Kartar Singh 1983(2) RCR 497 : (86)PLR 1984 page 78 : 1983 Marriage Law Journal 457 that both the eyewitnesses had nowhere stated about the essential ceremonies of the marriage known as Anand Karaj. That marriage by Anand Karaj has essential ceremonies of four Lavans made by the groom followed by the bride around the holy Guru Granth Sahib amidst the chanting of the recitations of the hymns composed by the fourth Guru, Guru Ram Dass are the accepted essential ceremonies. There is no word from the statements of the witnesses which could show that any ceremony was referred to by the P.Ws. Their saying that Anand Karaj was performed is not enough. Another proposition laid down in Kanwal Ram v. The Himachal Pradesh Administration, AIR 1966 SC 614, is that the admission of marriage by an accused is no evidence of marriage for the purpose of proving an offence of bigamy or adultery.

The afore cited authorities are fully applicable to the facts and circumstances of the present case, where, the complainant has neither pleaded nor proved, either the form of marriage or, the essential ceremonies performed for the solemnization of first marriage of Dharam Pal with Sheela Devi, or, in case of his subsequent marriage with the present complainant. Thus, the documentary evidence produced in this case either in the shape of photographs of the subsequent marriage or application under Section 125 Cr. P. C. filed by the first wife against Dharam Pal would not be sufficient to make out a prima facie cast for commission of offence of bigamy.

In these circumstances mere fact that the trial Court is competent to discharge the accused tinder Section 245(2) of the Code at a stage, subsequent to the framing of charge, would not, create any bar for exercising inherent jurisdiction under Section 482 of the Code, in order to avoid abuse of process of Court.

For the foregoing reasons, the complaint (Annexure P 1) and the subsequent proceedings including the order passed by the trial Magistrate dated 1981989 (Annexure P2) concerning framing of charge against the petitioner, are directed to be quashed. This petition is accordingly allowed.