Saurava Barik vs Smt. Gouri Kandi alias Gouri

D.P. Mohapatra, J.—The short question that falls for determination in this case is whether accepting the allegations in the complaint and the materials on record in toto, prima facie case u/s 493, Indian Penal Code, (IPC) is made out against the petitioner.

The petitioner Saurava Barik aged about 45 years is an Advocate practising at Sundargarh. He filed this application u/s 482, Criminal Procedure Code, (Cr PC) for quashing the order passed on 10-3-1992 by the Subdivisional Judicial Magistrate, Jharsuguda in I.C.C. No. 63/91 taking cognizance of the offence u/s 493, IPC and issuing summons to him. The criminal case was instituted on the complaint filed by. the opposite party Smt. Gouri Kandi alias Gouri alleging inter alia, that at the relevant time she was staying with her mo her and younger brother at Sundargarh and was wroking as a maid servant in the house of different persons including one lswar Behera who was Advocate''s clerk attached to the petitioner. The said Iswar Behera had good relationship with family of the opposite party and she was addressing him as ''Mamu'' (maternal uncle). in the month of Asadha, 1989 Iswar Behera with his family was going to Puri. On his request the opposite party accompanied him to Puri. On the way the petitioner met them at Cuttack and went with them to Puri. There ail of them stayed in a lodge. One evening the petitioner and Iswar Behera asked the opposite party to visit Jagannath temple with them; on her refusal they threatened to return to Sundargarh leaving her alone at Puri. Under such compulsion she accompanied them to the temple despite her unwillingness. In the temple the petitioner brought two garlands, put one on neck of the opposite party and took the oath that they became husband and wife since then and he would not leave her during his life-time. Then Iswar Behera forced the opposite party to take oath in similar terms and out of fear she put the garland on the neck of the petitioner. On the same night . the petitioner forcibly took the opposite party to his room, assured that she was his wife and he will treat her as such till her death. it is specifically mentioned in the complaint petition that previously the opposite party had knowledge that the petitioner had his wife and children. When she confronted him about that the petitioner told her that she should not bother about that and he would arrange separate residence, food and clothing for her. In the same night the petitioner cohabited with the opposite party.

After returning from Puri the petitioner arranged one room in the house of Iswar Behera at Sundargarh for the opposite party where she stayed. He regularly visited her and cohabited with her. In the moth of Pausa, 1989 the petitioner told the opposite party that they would stay at Beheramal, Jnarsuguda; then she came to Jharsuguda to the house of Puina Sahu and told her regarding their relationship and took a house on rent at Beheramal, There also the petitioner frequently visited her and they lived as husband and wile. In the month of Baisakh when the opposite party informed the petitioner at Berheramal that she was pregnant he proposed that she should terminate her pregnancy but she did not agree. Thereafter the petitioner went to Sundargarh assuring her to return soon but failed to do so, Thereafter he did not take any care of her. Finding no other way the opposite party accompanined by Puina Sahu went to Sundargarh and met the petitioner in the Court premises there, but he abused them in filthy language and refused to receive her as his wife. The opposite party further averred that the petitioner by deceit caused her, who is not lawfully married to him and thereby cohabited and had sexual intercourse with the opposite party. On the above allegations the opposite party prayed to the Court to take cognizance of the offence u/s 493. IPC against the petitioner and to punish him appropriately. The complaint petition was filed on 25-9-1991.

The opposite party reiterated the gist of her case as discussed in the foregoing paragraph in her initial statement.

The learned Magistrate by his order dated 23-12-1991 ordered for an enquiry u/s 202, Cr PC, In the said inquiry, as appears from the case record, three witnesses, Puina Sahu, Nilambar, Bhim and Chandrabati Kandi (mother of the opposite party) were examinied. On consideration of the complaint petition and the statements made by the complainant and her witnesses the learned Magistrate passed the impugned cognisance order on 10-3-1992.

The main thrust of the arguments of Shri H.S. Misra, learned counsel for the petitioner, was that the allegations made by the complainant and the materials furnished in support it accepted in toto do not make out a prima facie case u/s 493, IPC. Elucidating the point he urged that from the averments made in the complaint petition which were reiterated by the complainant in her examination, the basic ingredient of the offence that the accused practised deception to induce the complainant to believe that she was lawfully married to her is not established. Shri Misra also contended that the complainant''s story is highly improbable and unbelievable. According to Shri Misra, a totally false case has been foisted against him two years after the so-called incident at the behest of Iswar Behera who is inimical to him, with the sole purpose of tarnishing his image in society.

Section 493, IPC makes punishable cohabitation or sexual intercourse by deceitfully making the women to believe that the accused was lawfully married to her. The essence of an offecce under the section consists in the practice of deception by a man on a woman, in consequence of which she is led to believe that she is lawfully married to him even though, in fact, they are not lawfully married. The ingredients necessary to be established for bringing home the offence are : (i) the accused practised deception ; (ii) such deceit was to induce the woman (complainant) to believe that she was lawfully married to him ; (iii) there was cohabitation or sexual intercourse as a result of the deception.

This Court in the case of Raghunath Padhy Vs. The State, considering the essentials of Section 493, IPC, held inter alia, that to prove deception it must be conclusively established that the accused either dishonestly or fraudulently concealed certain facts, or made a false statement knowing it to be false. In that case some sort of marriage ceremony took place between the petitioner, a Brahmin aged 22 years (with his wife living) and a Brahmin widow, the woman being made to wear new clothes and put on new bangles and also vermillion mark on her forehead; there being also an exchange of garlands between the two. It was held that the element of deception was wanting in the case. This Court clarified that the petitioner''s sub- sequent conduct in deserting her after she became pregnant and in even repudiating the marriage though an important piece of evidence, will not suffice by itself to show that at the time when he participated in the ceremonies he intended to deceive her.

A Full Bench of the Kerala High Court in the case of Moideenkutty Haji and Others Vs. Kunhikoya and Others, interpreting Section 493 held as follows ;

"Section 493, IPC is one of the offences relating to marriage. The section does not penalise mere cohabitation or sexual intercourse with a woman who is not lawfully married to him. The section is attracted only when certain other ingredients are also associated therewith. The section envisages the case when a man deceitfully induces a woman to have sexual intercourse with him causing her to believe that she is lawfully married to him. The essence of the section is therefore the deception caused by a man on a woman in consequence of which she is led to believe that she is lawfully married to him while in fact they are not lawfully married. In order to establish deception there must first be allegations that the accused falsely induced her to believe that she is legally wedded to him. In the complaint in this case there is no allegation of any such deception or inducement. In a case where both the man and woman fully knew that they are not husband and wife and no ceremony of marriage took place between them, there is no question of one of them believing otherwise. Even if the entire allegations in the complaint are taken as true the section is not being attracted. The allegation is that though they are not husband and wife they had sexual union during late hours in the night for a pretty long time. What is alleged in the complaint is only a promise to marry in future. The strange part of it is, there is the further allegation that one day they went for registering the marriage, but the petitioner ran away from there and even thereafter she was submitting herself to him regularly for liaison. The facts cannot at any rate attract Section 493, IPC.

Both the aforementioned decisions have been relied upon by this Court in latter decisions like 1990 (II) OLR 100 : ( 1990) 3 OCR 367 (Janaki Kumar Das v. Gajendra Das) and (1993)6 OCR 14 (Amruta Gadtia v. Trilochan Pradhan and Anr.).

Testing the present case in the light of the principles enunciated in the aforementioned decisions, it is clear to me that the offence u/s 493, IPC is not made out on the allegations in the complaint petition and the evidence of the witnesses examined on behalf of the opposite party complainant. Neither there is any allegation within the four corners of the complainant petition nor is it stated by the opposite party- complainant or her witnesses in their deposition that the petitioner accused had falsely induced the opposite party-complainant to belive that she was aware that the petitioner was a married man having a living wife and child. She had confronted this fact with the petitioner Who, as alleged by her, promised to make provision for her to live in a separate house and to main her. It is not the case of the opposite party that she never believed that the ceremonies which she passed through in the temple amounted to lawful marriage. Therefore the essential ingredient of deception caused by a man on a woman in consequence of which she is led to beilieve that she is lawfully married is not borne out from the allegations in the complaint petition and/or the evidence led in the enquiry u/s 202, Cr PC. The resultant position is that Section 493, IPC is not attracted in the case. Further a significant fact which, in my view cannot be ignored is that the complaint petition was filed nearly two years after the alleged commission of the offence; only when the petitioner refused to accept her as his wife and declined to maintain her.

Taking into account the legal position and the facts and circumstances of the case discussed in the foregoing paragraphs,I am of the view that the cognizance order u/s 493. IPC is unsustainable and allowing the criminal case to proceed will be abuse of process of the Court.

In the result, the application is allowed: the cognisance order passed by the Subdivisional Judicial Magistrate, Jharsuguda on 10-3-1992 in ICC No. 63 of 1991 is quashed.