Tej Kaur vs Amarjit Kaur

B.S. Nehra, J.

This is a petition under Section 482 of the Code of Criminal Procedure, 1973, for quashing complaint, copy Annexure P1, and summoning order, copy Annexure P2, and all consequent proceedings against the petitioners pending in the court of learned Sub Divisional Judicial Magistrate, Fazilka.

The respondent has filed a complaint under Section 494 read with Section 109 of the Indian Penal Code against Tej Kaur. Wassan Singh and Sukhdev Singh, petitioners, who are her motherinlaw, fatherinlaw and brotherinlaw respectively, and her husband Sarup Singh besides eight others. In the complaint, the (respondent has alleged that she was married to Sarup Singh according to Sikh rites about twelve years ago to a village Jaimalwala, Police Station, Mallanwala, tehsil and District Ferozepur. She lived happily with him for about six months after the marriage but thereafter Sarup Singh, his brother and his parents started demanding fridge and television from her parents. Her case is that her maternal uncle had given her dowry worth about Rs. 80,000/ and, therefore, the could not compel her parents to give her more articles. She added that about six years back, she was turned out of her matrimonial home by her husband and her inlaws. Her father made efforts to rehabilitate her but to no avail. On 18.10.1987 her father alongwith other respectable went to the petitioners and Sarup Singh to demand the return of articles of dowry but they refused to do so. At that stage. Wassan Singh, petitioner No. 2 allegedly told her father that Sarup Singh has performed marriage on 4.3.1987. She added that after about 1012 days, Bhagwan Singh and Bakhshish Singh told her and her father that they were present in the second marriage of Sarup Singh with Balwinder Kaur at village Jaimalwala, Police Station, Mallanwala, Tehsil and District Ferozepur. She, therefore, asked for summoning the accused under Sections 494/109 of the Indian Penal Code and awarding them suitable punishment. The trial Court vide order dated 2.3.1990, copy Annexure P2, has summoned the petitioners. They have assailed the impugned complaint filed by the respondent and the summoning order passed by the trial Court as these allegedly constitute an abuse of the process of the court. According to them, the complaint, copy Annexure P1 does not disclose the necessary ingredients of the alleged offence of bigamy committed by the petitioners nor does it show that the necessary ceremonies for performing the alleged second marriage were gone through by Sarup Singh. According to the petitioners, the trial Court has found that no offence against Nibahu Ram, Granthi of the Gurdwara, is made out and this circumstance of the exclusion of Granthi supports the contention of the petitioners that no second marriage was ever performed by Sarup Singh.

The assertions of the petitioners have remained controverted inasmuch as the respondent has not chosen to file any reply to the pleas taken up by the petitioners.

The respondent has not made any allegation whatsoever against the petitioners that they had attended the second marriage allegedly performed by her husband Sarup Singh with Balwinder Kaur. The allegation levelled by the respondent in the complaint, copy Annexure P1, is that the second marriage of Sarup Singh with Balwinder Kaur was performed by Nibahu Ram, Granthi, and the latter had been arraigned as respondent No. 12 in the complaint. The trial Court has come to the conclusion that the allegations against said Nibahu Ram, inter alia are exaggerated and hence it did not find a prima facie against him. Since Nibahu Ram, Granthi, has not been summoned it necessarily follows that the allegation of the respondent about the performance of the alleged second marriage of Sarup Singh with Balwinder Kaur by him (Nibahu) has been found to be untenable by the learned trial Judge. Besides, the respondent has not made any assertion as to how the essential ceremonies of the second marriage were performed. It has been held by a Division Bench of this High Court in Parkasho Devi v. Mohan Lal and others, 1992(2) Recent Criminal Reports 273 , that where the complainant failed to prove essential ceremonies required for solemnization of a valid marriage the accused cannot be convicted under Section 494 of the Indian Penal Code even though the accused may have admitted second marriage in another civil suit. It has been held by the Supreme Court in Smt. Chand Dhawan v. Jahawar Lal and others, 1992(3) Recent Criminal Reports 534 , that in a complaint against the husband, second wife and some others, who were present at the time of second marriage, the participants in the marriage cannot be held liable under Section 494 of Indian Penal Code merely by their presence or for otherwise facilitating the solemnization of the second marriage. In the instant case, there is no allegation against the petitioners that they had participated in the ceremonies of the second marriage. Even if they were present at the time of the alleged second marriage of Sarup Singh with Balwinder Kaur, they could not be held liable on the ratio of the judgment of the Supreme Court in Smt. Chand Dhawan''s case (supra). In Mrs. Nivedita Dina Nath v. State and another, 1991(1) Recent Criminal Reports 376 , it was held by the Delhi High Court that the mere presence of a person is not sufficient to prove that he abetted the offences under Section 494 and 109 of the Indian Penal Code. The mere fact that Wassan Singh, petitioner No. 2 had allegedly told the father of the respondent about the performance of the second marriage by his son Sarup Singh, cannot be taken as a ground to hold that he (Wassan Singh) had either participated in the alleged second marriage of Sarup Singh or had abetted the performance.

On a careful consideration of the allegations in the complaint, copy Annexure P1 and the summoning order against the petitioners, copy Annexure P2, I find that these constitute an abuse of the process of the Court and hence these are liable to be quashed in exercise of powers under Section 482 of the Code of Criminal Procedure, 1973.

For the reasons recorded above, this petition is allowed and the complaint, copy Annexure P1, and the resultant proceedings against the petitioners are quashed.