S. Natarajan vs Shelly

Arunachalam, J.—The petitioner is the sole accused in C.C. No. 10375 of 1989 on the file of the XVT1 Metropolitan Magistrate, Saidapet,

Madras. Pas prosecution has been initiated by the respondent by filing a private complaint against the petitioner for offences under Sections 493,

494, 495 and 496 I.P.C. The respondent has filed the complaint as an aggrieved person, coining within the fold of Section 198 Cr. P.C.

The private complaint was filed before the Court below on 18-7-1989 on which date, the sworn statement of the respondent was recorded.

For examination of other witnesses u/s 202 Cr.P.C., the proceedings were adjourned, on 18-7-1989 to 22-7.1989. However, it is seen from the

record''s that the father of the respondent, R. Subraimniam, was examined by the Court below on 29-7-1989 and the matter was posted for

orders on 4-8-1989. On 4-8-1989 the trial Magistrate took the complaint on file for offences under Sections 493, 494, 495 and 496 I.P.C. and

directed issue of process to the petitioner, u/s 204 Cr. P.C., returnable on 19-8-1989. Meanwhile, the petitioner preferred this petition (Crl. M.P.

No. 13806 of 1989) on the, file of this Court, to quash the proceedings, pending against him in the Court below, as one without jurisdiction and an

abuse of process of Court. The proceedings in the Court below, were also stayed by this Court, by the order made in Cri. M.P. No. 13807 of

1989, filed along with the main petition, on the same date.

The respondent filed Cri. M.P. No. 15415 of 1989 to vacate the stay ordered by this Court in Cri. M.P. No. 13807 of 1989. This Court

directed final disposal of the main petition itself. (Crl. M.P. No. 13806 of 1989).

Even initially it will be better to narrate, in brief, the allegations made by the respondent, in the private complaint filed before the lower Court.

The respondent was a student in Holly Angels Convent, T. Nagar, Madras-17, from LK.G to XI Standard One Shanthi, the daughter of the sister

of the petitioner, was also studying in the same school. The petitioner used to drop Shanthi at the school daily and, take her back after school

hours. The respondent was aged about 16 years then without worldly knowledge. The petitioner, who became friendly with the respondent,

represented to the latter, that he was a partner in Sundaram Stores, General Merchants, and that he was a Bachelor, enormously rich, and was

anxious to marry the respondent and induced her to believe that such a marriage would be very beneficial to her. The respondent was thereby

induced to believe that the representations of the petitioner were true. It appears from the averments made in the complaint, that the petitioner

instructed the respondent not to have any discussion with others inclusive of Shanthi about all that he had stated to her and promised very happy

future to th; respondent, in case she married him. The petitioner and the respondent used to meet quite often, by prior arrangement at places

selected by the petitioner. It is the case of the respondent that the petitioner never informed her that he was already married and that his wife was

alive. In pursuance of his representations, the petitioner further insisted, that in order to overcome the protests of the parents of the respondent,

they should marry secretly and as if in a stance, the respondent totally believed the petitioner and did whatever he instructed her to do.

The petitioner took the respondent to Sub-Registrar''s Office on 26-8-1971 and made her execute a marriage agreement on a stamp paper,

which was registered on the same day. Two friends of the petitioner attested the said agreement. A perusal of the agreement will indicate that the

respondent was aged only 19 years on 26-8-1971 and that both parties had prior intimacy for about five years. This agreement also mentions as

though there was some form of ......... marriage at Chidambaram on 28-1-1966 between the petitioner and the respondent. According to the

respondent, this averment is false, for she had never gone to Chidambaram and she was only 14 years of age in or about January, 1966. The

petitioner persuaded the respondent not to disclose the registered marriage afore stated for 30 days. Subsequently the respondent informed her

parents who, on a perusal of the document, found it to be a mere agreement, containing several false allegations and, therefore, insisted that a

religious marriage must be performed between the petitioner and the respondent, which might be registered, as well, since the respondent was a

Tamil Brahmin, while the petitioner happened to be a Malayali. To satisfy the parents of the respondent, the petitioner took the respondent and her

parents to Thirumalai on 12-3-1972 and had the marriage solemnised between him and the respondent. A few days after return from Thirumalai on

5-4-1972, the marriage between the petitioner and the respondent was registered at Madras.

Subsequent to the registration of the marriage, the petitioner and the respondent lived as husband and wife at Ashok Nagar and a son was born

out of the wedlock on 8-5-1975. The grievance of the respondent is that, by deceit practised by the petitioner on her, she was induced to believe

that she was lawfully married to the petitioner and on such deceit, she believed that she was lawfuly married to the petitioner and while she was

under that belief, the petitioner had sexual intercourse with her. It is alleged in the complaint that the petitioner, with dishonest and fraudulent

intention, had gone through the ceremony of marriage with the respondent, even though he was aware that he was committing an offence, by

reason of his subsisting marriage with Tmt. Jaya. Thus, the petitioner had married the respondent, concealing from her, his former marriage. When

the respondent questioned the petitioner, as soon as she learnt about his first marriage with Jaya, he admitted such marriage, which led to the

respondent filing O.P. No. 292 of 1985 on the file of the VI Assistant Judge, City Civil Court, Madras, for declaration that the marriage between

her and the petitioner was null and void. The petitioner appeared before the said Court on 10-10-1985 and made an endorsement on the petition

itself, that he submitted to the passing of a decree as prayed for in the petition. It appears that the civil Court initially made an incorrect observation

that the respondent was admittedly a concubine of the petitioner, which was subsequently deleted by way of amendment, which again is now the

subject matter of a civil revision petition, pending in this Court, at the instance of the petitioner.

Mr. S. Byravan, the learned counsel appearing for the petitioner contended, that the respondent was the kept mistress of the petitioner, the

intimacy between them having developed more than 20 years ago as was evident from the document dated 26-8-1971, the contents of which

portrayed a marriage between the parties at Chidambaram as early as 28-1-1966. According to the learned counsel, the respondent has not

mentioned any date regarding the commencement of intimacy, though she had admitted that a child was born as a result of such intimacy on 8-5-

1975. Ha would further contend that the mother of the respondent happened to be an Anglo Indian Christian and the respondent as well as her

mother and brother practised Christianity then and even now. Since the respondent was living in the out-house of the building belonging to the

sister of the petitioner, the question of commencement of cohabitation by concealment of facts, would never arise. The petition for divorce, was

initiated by the respondent at the instigation of some interested persons, containing false allegations regarding their relationship. According to the

learned counsel, the allegations in the complaint had no foundation on facts and law and the process had been mechanically issued by the trial

Magistrate. Even in respect of the marriage two different places and dates are mentioned and the allegations in the complaint are vague and unclear

and the prosecution initiated after a delay of more than 20 years ought to have been dismissed in limine by the Magistrate. He strenuously

contended that the respondent will not be an aggrieved person within the meaning of Section 198 Crl.P.C. and only the first wife, Jaya, would be

an aggrieved person. He further contended that the alleged second marriage having taken place either at Chidambaram or Thirumalai, the

Magistrate at Madras lacked territorial jurisdiction to entertain the complaint, especially for an offence u/s 496 I.P C. He would urge that an

offence u/s 493 I.P.C. will not arise, since there was no specific mention regarding the date of cohabitation and the date of marriage between the

petitioner and Jaya, coupled with there being no material to show, that the petitioner had dishonestly concealed certain facts or made false

statements to the respondent.

Mr. B. Sriramulu, the learned counsel appearing for the respondent contended that the second wife, who was not aware of the prior marriage of

her first husband, would be an aggrieved person within the meaning of S. 198 Cr. P.C. to initiate the prosecution. According to him, the

representations made by the petitioner, that he was a Bachelor and a rich man, to marry the respondent without divulging his prior marriage with

Jaya, would be sufficient to attract all the ingredients of the several offences, for which process had been issued by the lower Court He would

submit that in view of the Civil Court''s decree, the marriage between the petitioner and the respondent was void, in view of the subsistence of the

prior marriage of the petitioner with Jaya, who was admittedly alive. The petitioner, without objecting to the averments made in the original petition

for divorce, had submitted to a decree, which would prima facie indicate that the averments made by the petitioner in the petition for divorce were

true and the same had been accepted by the petitioner. Pointing out the language of Section 493 I.P C., which refers only to woman as the victim,

contra distinguished from other Sections, he would strenuously contend that the deception contemplated under the said Section leading to

cohabitation or sexual intercourse, in that belief, on the inducement by the petitioner, was primarily available in the averments made in the complaint

and therefore, the proceedings cannot be quashed at this stage and the respondent must be provided an opportunity to place before the Court all

the materials she was desirous of producing in evidence. He would also submit that the agreement dated 26-8-1971 denoted a marriage at

Chidambaram, when the respondent was less than 16 years, and if it were to be true, the petitioner would be further liable for the offence of rape,

covered by-clause 6 of Section 375 I.P.C. He would argue that on facts the ingredients of Section 496 I P.C. were also attracted. Once the

marriage between the petitioner and the respondent is void, in view of the prior valid marriage between Jaya and the petitioner, the offence u/s 494

LP.C. and its aggravated form contemplated u/s 495 I.P.C. were attracted. As far as the jurisdiction of the Madras Court is concerned, he would

contend that the marriage had been registered at Madras within the jurisdiction of the trial Magistrate and this ground of attack was more fanciful

than real. In respect of the argument relating to delayed prosecution, he would urge that Section 468 Cr. P.C. did not prescribe any limitation for

these offences and the observations of the Supreme Court, in general, would show that merely on the ground of delay, prosecutions cannot be

thrown out, at their threshold.

I have carefully considered the divergent contentions of either counsel and have given my anxious thought to all the contentions, in the light of the

case law placed before me by either of them. It is better initially to scrutinise the ingredients of the various offences alleged against the petitioner,

before attempting to find out, if the material placed before the Court, in the form of complaint and sworn statements of the respondent and her

father, coupled with the documents produced, would prima facie attract the said offences, vesting jurisdiction in the trial Court to issue process

against the petitioner.

Chapter XX of I.P.C. deals with offences relating to marriage and we are now concerned with the first four Sections and not with the last two

Sections, which deal with adultery and enticing or taking away or detaining with criminal intent a married woman. The ingredients necessary to

constitute an offence u/s 493 I.P.C. will be three-fold : (1) The accused caused the woman in question to believe that she was lawfully married to

him; (2) that the accused induced that woman to cohabit or have sexual intercourse with him under that belief and (3) that the accused caused such

belief by deceit. Essentially the offence u/s 493 I.P.C. consists in giving a false assurance of the marriage to a woman and thereby procuring sexual

intercourse with her. The difference between this offence and the offence u/s 496 I.P.C. is that in the latter offence, a ceremony is fraudulently gone

through knowing that such ceremony was not lawful. The ingredients necessary for the latter offence is three-fold: (1) That the accused went

through the ceremony of marriage; (2) that when he went through such ceremony, he knew that he was not thereby lawfully married to the

complainant; and (3) that he did it dishonestly or with a fraudulent intention.

Section 494 I.P C. requires the following ingredients : (1) Existence of the first wife or husband when the second marriage was celebrated : (2)

the second marriage being void by reason of subsistence of the first marriage, according to the law, applicable to the person violating the provisions

of the Section. Section 495 I.P.C. A ill be attracted, when the ingredients necessary to constitute an offence u/s 494 I.P.C. are established and

further when the accused while marrying the second person, concealed from such person the fact of the former marriage. Section 495 I.P.C.

provides a higher penalty when the fact of the former marriage is concealed. This is because a married man by posing himself as unmarried, induces

a woman to become, as he thinks, his wife, but in reality is a concubine and the mother of an illegitimate issue.

The averments in the complaint, which have been extracted in detail earlier, prima facie show that the petitioner had represented that he was

bachelor and a rich businessman, knowing fully well that he was not a bachelor since he had already married Jaya and, therefore, the said deceit

practised on the respondent, induced a belief in her, by the ceremonies they underwent or by the documents brought into existence that she was

lawfully roamed to him and while she was in that belief, he had sexual intercourse with the respondent The truth or otherwise of the allegations in

the complaint cannot be gone into at this stage and all that the Court is concerned now is .whether the allegations in the complaint prima facie make

out the offences alleged. It is quite true as submitted by Mr. Byravan, the learned counsel for the petitioner, that Section 493 I.P.C. is not intended

to punish one for contracting a marriage which tune, out to be illegal but only punishes a man for obtaining the body of the woman by deceitfully

.issuing her that he had acquired that right by jus mariti. Refer . Abdul Khader, In re: 1 1969 Law Weekly Crl. 210 and Smt. Rajya Bala v. Kumar

Leswar Das 1977 Crl. L.J. 69. The allegations in the complaint narrate cohabitation or sexual intercourse, under the belief that the respondent was

lawfully wedded wife of the petitioner, only after the marriage, and the averments relating to the period prior to the marriage indicate frequent

meeting intimacy and friendship. If, on the evidence to be placed before the Magistrate during trial, a conclusion could be arrived at that the

petitioner had deceitfully induced the respondent to believe that a lawful marriage had been performed and it was under such belief, that the woman

was induced 10 have sexual intercourse with him, the offence would be complete ; but on the contrary, if thy evidence was doubtful about sexual

intercourse being the outcome of the deceit contemplated under that Section, the petitioner would be entitled to an acquittal. Similarly, if the

evidence to be placed before the Court below would establish knowledge on the part of the petitioner, in going through the ceremony of marriage

with the respondent, that he was not by such ceremony lawfully married to the respondent and he had gone through the said ceremony of marriage

dishonestly, or fraudulently he would be liable to be punished. If the petitioner is able to erase the mens rea contemplated under the Section, he will

have to be exonerated. Prima. facie, in view of the divorce obtained by the respondent from this petitioner in the matrimonial Court, on the basis of

existence of a prior valid marriage between the petitioner and his first wife, Jaya, the offences under Sections 494 and 495 I.P.C. may be

attracted. The question of concealment from the respondent, the fact of the former marriage will again relate to the realm of appreciation of

evidence placed before the trial Court. I am not going into the details of the averments made in the complaint and the sworn statement by the

respondent at this stage, for it would suffice to notice that, according to the respondent, when questioned by her, the petitioner stated that she was

the lawful wife and his marriage with Jaya was just forced. From the records inclusive of the marriage registration certificate, it is seen that the

respondent and her parents are Hindus. The question of the respondent''s mother being a Christian as alleged by the learned counsel for the

petitioner may not loom large for discussion at this stage.''

The defence of the petitioner that the marriage was celebrated at Thirumalai only to satisfy the parents of the respondent and not voluntarily

performed by him will also not loom large for consideration at this stage. The respondent will have to establish that a prior lawful marriage had

taken place between the petitioner and Jaya to substantiate her allegations made in the complaint. As rightly pointed out by Mr. B. Sriramulu, the

learned counsel appearing for the respondent, the averments in the petition for divorce made by the respondent and acceded to by the petitioner

by submitting to a decree, will also be material in arriving at a verdict of a prior lawful marriage between the petitioner and Jaya. I do not think, it

necessary at this stage to go into the question as to whether the petitioner had committed an offence, attracting clause 6 of Section 375 I.P.C.,

especially when the respondent have averred in the complaint that the contents of the marriage agreement dated 26-8-1971 were false and that she

had not gone to Chidambaram on 28-1-1966.

Taking into consideration the array of Sections of the Indian Penal Code, for which process had been issued to the petitioner, I am unable to

hold that the trial Magistrate has no jurisdiction to entertain the complaint. The registration of the marriage at Madras may be one ground which

furnishes jurisdiction to the lower Court. If we look into the ingredients of the offence alleged we cannot eras:; tint the basic ingredient for one or

other of the offences is being the concealment of the fact of the earlier marriage and such concealment had taken place, according to the averments

in the complaint at Madras which then would invest jurisdiction in the trial Court. If after recording the entire evidence, the trial Court arrives at a

conclusion that it had no jurisdiction, the petitioner would still be exonerated, for on facts, want of jurisdiction is not patent at this stage.

The next important question to be adverted to, will be whether the respondent is a person aggrieved as contemplated u/s 198 Cr.P.C. Section.

198 Cr.P.C. imposed a prohibition of the cognizance, with an exception. This Section places a limitation on the general rule that any person can set

the criminal law in motion, however limiting it to the offences under Chapter XX of the Indian Penal Code, relating to marital offences. The

cognizance of an offence punishable under Chapter XX of I.P.C. could be taken only upon a complaint made by some person aggrieved by the

offence. There is no indication in the Criminal Procedure Code as to who should be considered as a person aggrieved, but it is fairly obvious that

the word ""aggrieved"" is intended to refer to a person injured by the second marriage. The grievance contemplated cannot be fanciful or sentimental,

but must be real in the legal sense. If that should be the meaning given to the words ""some person aggrieved by the offence"" appearing in Section

198 Cr. P C., a second wife, who had been duped into a bigamous marriage, by concealment of the prior valid marriage, would certainly be

aggrieved by the second marriage, to attract the provisions of Section 198 Cr. P.C. If the second marriage had been performed with the prior

knowledge of the first marriage the husband or the wife of the second marriage, as the case may be, cannot be a person aggrieved by the offence.

Therefore, the words ""person aggrieved by the offence"" will certainly have a bearing referable to the facts of each case and ;i general rigid formula

may not be possible to the laid down. Equally if the respondent was the person aggrieved, on the date on which the offence is alleged to have been

committed, she will not cease to be so, merely because on the dale of the complaint, she had obtained a divorce.

The learned counsel for the petitioner placed before me the decisions of the Andhra Pradesh High Court and the Punjab and Haryana High

Court, to support his proposition that the second wife will not be an aggrieved person, to furnish her a locus standi to file the complaint.

In P. Kondiah v. State 1954 M.W.N.125 Chandra Reddy, J, held that a woman, whose marriage with the accused was void because of the

subsistence of an earlier marriage of the accused was not a ""person aggrieved"" within Section 198 Cr.P.C. so as to be entitled to complain against

the accused for taking a third wife. That was a case where the first accused was alleged to have taken a third wife while his marriage with the

second wife subsisted. The evidence disclosed that the first wife of the first accused was alive even then. There was also no evidence, that on the

date the complainant �n that case was married to the first accused, or even subsequently, the first accused had obtained divorce of his first wife.

In those circumstances, the Court held that the marriage of the second wife herself with the first accused was ab initio void and if there was no legal

and valid marriage, she could not be the wife of the first accused to have any grievance to come within the scope of Section 198 Cr. P.C. In that

view the prosecution was held to be invalid. The said decision cannot help the petitioner, in view of the grievance of the second wife, who had no

knowledge of the first marriage, regarding which I have discussed in detail earlier.

In Ujjagar Singh Numberdar and others v. Harbhajan Singh and Others 1985 I Cri 111 the Punjab and Haryana High Court held that A

complaint u/s 494/109 I.P.C. (for offence of bigamy and abetment of bigamy) by the second wife was not maintainable in view of provisions of

Section 198 Cr.P.C. as according to which only the aggrieved party is competent to file the complaint and the second wife did not fall in the

category of aggrieved person as envisaged in Section 198 Cr. P.C. Not much of discussion is available in that case, since the learned Judge,

placing reliance on an earlier ruling of the same Court, arrived at such a conclusion. The view 1 have expressed earlier that the second wife or

husband, as the case may be, who did not have knowledge of the prior marriage, will be a person aggrieved within the meaning of Section 198 Cr.

P.C. is supported by the observations of Basi Reddy, J., in G. Sarada v. V. Gopalaswamy Rao and another. 1967 M.I. J.550 In that case on

factual findings the Court arrived at a conclusion that the accused therein had not concealed from his second wife the fact of his previous marriage.

In that context, it was held that on facts, the complainant therein was not aggrieved. In the case on hand, the allegations made by the respondent

prima acie indicate that she had been tricked into marrying the petitioner, without his disclosing to her, that he had a prior marriage with J, which

was in subsistence and the said Jaya herself was alive. I am of the firm view that the petitioner cannot succeed, at this stage, on the ground that the

respondent is not a person aggrieved, as contemplated u/s 198 Cr.P.C.

The last question to be dealt with will be the effect of the delay in initiating the prosecution vis-a-vis its leading by necessity to halt the trial at its

threshold, as contended by the learned counsel for the petitioner. Both the learned counsel have placed before me certain decided cases. Mr.

Byravan had relied upon the following cases :

(1) (J.C. Tondon v. Munna Lal) 1980 ALJ947. That was a case of extortion, relating to two incidents. On facts, the Court held that the complaint

had been filed with false allegations of extortion, six months after the alleged incident when, in fact, steps could have been taken immediately.

Further in that case the Magistrate had cursorily looked into the statements recorded under Sections 200 and 202 of the Code and failed to notice

variations between the allegations in the complaint and the statement later recorded. In those circumstances, the Court held that the object of the

complainant was to harass the accused and therefore, the issue of process, resulted in an abuse of the process of the Court. That ruling will not

attract the facts of the present case.

(2) (Gopalakrishnan v. Ramasubramania Raja), 1972 LW 39 In this case Ramaprasada Rao, J., was dealing with a complaint, which was

dismissed by the trial Court, and upheld in revision by the Court of Session. This Court held that the Court had a discretion to refuse to entertain a

complaint on the ground of delay. Factual details had been gone into in the said ruling, while upholding the verdict pronounced by both the lower

Courts. This ruling will also not help the case of the petitioner.

Per contra Mr. B. Sriramulu brought to my notice the decision of the Supreme Court in Diwan Naubat Rai and Others Vs. State and Another,

, wherein it was found that the prosecution had delayed the process of trial only for about 30 days and the proceedings were not liable to be

quashed on the ground that the prosecution was responsible for the delay in trial. We have not reached, on the facts of the present case, the trial

stage, since the petitioner has approached this Court, on receipt of process, to quash the proceedings pending before the lower Court. However,

the observations of the Supreme Court in Asst. Collector of Customs, Bombay and another v. L.R. Melwani, may be relevant. The Apex Court

observed as follows :-

This takes us to the contention whether the prosecution must be quashed because of the delay in instituting the same. It is urged on behalf of the

accused that because of the delay in launching the same, the present prosecution amounts to an abuse of the process of the Court. The High Court

has repelled that contention. It has come to the conclusion that the delay in filing the complaint is satisfactorily explained. That apart, it is not the

case of the accused that any period of limitation is prescribed for filing the complaint. Hence the Court before which the complaint was filed could

not have thrown out the same on the sole ground that there has been delay in filing it. The question of delay in filing a complaint may be a

circumstance to be taken into consideration in arriving at the final verdict. But by itself it affords no ground for dismissing the complaint. Hence we

see no substance in the contention that the prosecution should be quashed on the ground that there was delay in instituting the complaint.

Taking into consideration, the nature of the allegations made in the complaint coupled with the matrimonial proceedings, a portion of which is

still pending in this Court, as regards the amendment to the original decree, I do not think that the complaint could be thrown out merely on the

ground of delay, though delay may have a bearing while arriving at a final verdict in this case, depending upon the explanations offered. The

question of delay is not an irrelevant consideration, but will depend on the facts of each case. I do not find any merit in this petition, which is hereby

dismissed.

However, the trial Court will proceed with the trial without being influenced by the observations made in this order, which have been made

prima facie on the averments in the complaint and the sworn statements.