Sitaram vs Smt. Shyamadevi and Another

Subhash Samvatsar, J.

This petition is filed by the applicant Sitaram u/s 482, Cr.PC praying for quashing all the proceedings in Criminal Case No. 230/2001, Shyamadevi v. Sitaram.

Facts of the case are that respondent No. 1 Shyamadevi filed a complaint against the present applicant alleging that she is married wife of the applicant. Marriage between the applicant and the respondent was solemnised in the year 1948. Out of the wed-lock three issues were born out of which one son Ramprakash and a daughter Sarladevi is alive. She alleged that in spite of the fact that the complainant is alive the applicant married to one Shantidevi without obtaining any decree of divorce. The Court below register the offence u/s 494, IPC hence this petition is filed u/s 482, Cr.PC for quashing the charge.

Counsel for applicant submits that the case for committing offence u/s 494, IPC cannot be initiated against the applicant as per the allegations made in the complaint and the statements of the respondent, as the ingredients of Section 494, IPC are not made out and, therefore, the proceedings before the Court below should be quashed in exercise of powers u/s 482, Cr.PC. Counsel for applicant for this purpose relied on the judgments of the Apex Court in the cases of Dr. Sharda Prasad Sinha Vs. State of Bihar, , Ashok Chaturvedi and Ors. v. Shitul H. Chandani and Anr. 1998 SCC 1704, Pappu alias Mohammad Zalil and Another Vs. State of Madhya Pradesh, M/s, Pepsi Foods Ltd. and Anr v. Special Judicial Magistrate and Ors. 1997 AIR SCW 4084. In all these cases it has been held that criminal proceedings against a person can be quashed by the High Court in exercise of powers u/s 482, Cr.PC, if prima facie offence is not made out against the said person. The test laid down by the Supreme Court is when the allegations made against the accused prima facie does not constitute the offence then the prosecution should not continue in the interest of justice. In such cases the High Court can quash the proceedings in exercise of powers u/s 482, Cr.PC as continuing the said proceedings would amount to miscarriage of justice.

There is no doubt about this preposition and, therefore, I am not required to go in details of the cases cited by the applicant. Now, the only question involved in the case is whether the allegations made by the respondent in her complainant and her statement recorded by the Magistrate u/s 202, Cr.PC are sufficient in the present case to constitute offence u/s 494, IPC.

Shri Sanjay Gupta, Counsel for applicant, vehemently urged that for constituting offence u/s 494, IPC it is necessary for the complainant not only to allege the fact of second marriage but also it is necessary for her to prove that the second marriage was solemnised in accordance with the prevailing customs in the society. For this purpose Counsel for applicant further relied upon the judgment of Apex Court in the case of Smt. Priya Bala Ghosh v. Suresh Chandra Ghosh AIR 1971 SC 1153, Bhaurao Shankar Lokhande and Another Vs. State of Maharashtra and Another, , Lingari Obulamma Vs. L. Venkata Reddy and Others, , and number of other cases. In these cases the Apex Court has held that for constituting offence u/s 494, IPC it is necessary for the complainant to prove that the marriage between the parties was solemnised in accordance with the customs. The admission made by the complainant is not sufficient to punish the husband for committing the offence u/s 494, IPC. In all these cases the Apex Court has interpreted the expression "whoever marries" appearing in Section 494, IPC and the Apex Court has held that this expression of "whoever marries" means whoever validly marries. Thus, it means whoever goes through a form of marriage, known to or recognised by law. So the expression ''marriage'' in Section 494, IPC would mean marriage valid in form though not in law and, therefore, for prosecuting the present applicant it is necessary for the complainant wife to show that the second marriage was solemnised in accordance with the customs prevailing in the society and in absence of any allegations to that effect prosecution u/s 494, IPC cannot proceed against the applicant

Now, I have to examine whether there are sufficient allegations in the present case to prosecute the applicant for committing offences u/s 494, IPC. Respondent in Para 7 of the complainant has alleged that the applicant husband has admitted the fact that he had married to the complainant, in a Suit No. 9/98 pending in the Court of Civil Judge Class II, Sabalgarh. A copy of the plaint is on record. The said suit is still pending. According to the plaint allegations the marriage between the applicant and the respondent is not a disputed fact. In Para 4 of the plaint he has specifically stated that the present complainant was his wife but they never lived together nor marital relationship was establish between them. Complainant is residing separately since 1948 and was employed as a teacher., The complainant has also filed the statement of the husband recorded in the said civil suit. In Para 4 of his statement he has admitted the fact that he was married in Village Sadupur, Shikohabad, U.P. with the complainant but he says that he was unconscious at the time of marriage and when he gained consciousness he deserted the complainant. He further admitted that there was no divorce between the parties. He has also admitted in the said paragraph that the name of his wife is Shantidevi and he has four issues from Shantidevi. One of the sons from Shantidevi is a doctor in City dispensary, Morena. The other son Harish is serving in the Bank while third son Rajkumar is a Govt. Advocate. In Para 8 of the complainant, the complainant has said that the present applicant is residing with Shantidevi without any divorce between the complainant and her husband. In Para 11 of the complaint she has specifically alleged that the husband has solemnised second marriage during life time of her without obtaining any divorce.

Now, the question is whether these averments arc sufficient to constitute offence u/s 494, IPC or the proceedings should be dropped for want of pleadings about the second marriage was solemnised in accordance with the customs prevailing in the society. It is true that there is no averment on record by the complainant either in her statement recorded u/s 202, Cr.PC or in the complaint that the marriage between the present applicant and Shanlidcvi was solemnised in accordance with the customs. It is true that only admission made by the husband that he has married with second wife is not sufficient to constitute offence u/s 494, IPC but in the present case the admission is not limited to the fact that the husband has married with second wife. The admission further shows that there is long cohabitation between the present applicant Sitaram and Shyamadevi and three issues were born out of their relationship which itself gives arise to a presumption of a valid marriage. For this purpose reliance is placed upon the judgments of Apex Court in the case of AIR 1994 133 (SC) , Badri Prasad Vs. Dy. Director of Consolidation and Others, , Gokal Chand v. Parvin Kumari AIR 1952 SC 231 and Rameshwari Devi Vs. State of Bihar and others, . It is true that this presumption is rebuttable but that can be rebutted only by leading evidence to the contrary and the burden of rebutting the said presumption lies on the present applicant husband. Hence mere absence of allegations about the ceremony is not sufficient to hold that offence u/s 494, IPC is not made out in the present case as there is presumption that the marriage was solemnised in accordance with the customs of the society. The presumption of law is in favour of valid marriage and against concubinage.

In such circumstances, I find that there is a prima facie material on record to prosecute the present applicant for committing offence u/s 494, IPC, and, therefore, proceeding u/s 494, IPC against the applicant cannot be quashed in exercise of powers u/s 482, Cr.PC.

This application, therefore, fails and is dismissed.