T.P. Ravichandran and Others vs S. Padma

M. Thanikachalam, J.—The accused, in C.C. No. 164 of 2000 on the file of the Judicial Magistrate No. 2, Salem, are the revision

petitioners, having failed in their attempt, by filing a petition u/s 245(2) Cr.P.C., praying to discharge them from the case.

The respondent herein, by name Smt. S.Padma, is the wife of Mr.T.P. Ravichandran, the first petitioner. It is reported, the other petitioners are

the relatives of the first petitioner. It is an admitted position, that the marriage, between the first petitioner and the respondent, was solemnized on

18.8.1996. Thereafter, their marriage life was not so happy and the husband approached the Sub Court, Sankari, for divorce, on the grounds of

cruelty and adultery, in H.M.O.P. No. 29 of 1998. In that H.M.O.P., as reported by the learned counsel for the revision petitioners, the wife was

served with the notice, but she failed to contest the case, as a result, on 24.9.1998, an ex-parte decree came to be passed, granting divorce i.e.

dissolving the marriage between the first petitioner and the respondent.

The first petitioner/husband, admittedly, married another lady on 15.11.1998, which was registered under the Hindu Marriage Act and the

Marriage Certificate was issued on 4.12.1998, probably on the ground that his marriage with the respondent was not subsisting.

The respondent/wife, who suffered a decree for divorce, in her absence, approached the Sub Court, Sankari, for setting aside the same, by

filing an application and notice in the same was served upon the first petitioner/husband on 25.1.1999 and in evidence of the same, the postal

acknowledgment copy has also been filed. Neither the counsel for the revision petitioners nor the counsel for the respondent are able to give the

dates regarding the setting aside of the ex-parte decree. However, one thing is clear that till 22.1.1999 or 25.1.1999, the ex-parte decree of

divorce was not set aside, which suffice to decide the dispute in this case. Now, it is reported that the ex-parte decree of divorce has been set

aside and it is also further reported by the learned counsel for the respondent that the H.M.O.P. No. 29 of 1998 filed by the husband, for divorce,

itself was dismissed, on merits.

Because of the fact that the husband married another lady, the respondent/wife has filed a private complaint before the Judicial Magistrate No.

2, Salem, as if the first petitioner/husband has committed an offence u/s 494 IPC, for which other accused have abetted, thereby the other

respondents are also to be dealt with u/s 494 r/w. 109 IPC. The learned Judicial Magistrate has taken up the case on file in C.C. No. 164 of 2000

and the same is pending.

All the accused in C.C. No. 164 of 2000 have filed a petition, u/s 245(2) Cr.P.C., praying to discharge them, on the ground that no offence has

been made out u/s 494 IPC, since the first accused had married another lady, when the decree for divorce was in subsistence. However, the trial

Court, considering the fact that subsequently, the ex-parte decree granted for divorce, was set aside, unable to accept the defence raised on behalf

of the accused, had dismissed the application, which is under challenge in this Revision.

Heard Mr. P.Jagadeesan, the learned counsel for the revision petitioners and Mr. S.Palaniappan, the learned counsel for the respondent.

It is not in dispute that the marriage between the fist petitioner and the respondent was solemnized on 18.8.1996. It is also not disputed that the

first petitioner/husband has filed a petition, for divorce, in H.M.O.P. No. 29 of 1998 and obtained an ex-parte decree of divorce, on 24.9.1998,

thereby proving that after 24.9.1998, the relationship between the first petitioner and the respondent, viz. husband and wife, ceased. In this view,

under law, there is no bar, for the first petitioner, to marry another lady. As seen from the Marriage Certificate, the first petitioner married another

lady on 15.11.1998 i.e. when the decree for divorce, whether it is ex-parte or otherwise, which is a valid one, was in subsistence. Admittedly,

after January, 1999 alone, the ex-parte decree was set aside, thereby restoring the relationship of husband and wife between the first petitioner and

the respondent. Thus, it is made out, after the ex-parte decree, till the same was set aside, there was no subsistence of relationship of husband and

wife between the first petitioner and the respondent. Therefore, the only point, which arises for consideration in this revision is:

Whether the fact that the first petitioner married another lady, during the above said period, would attract Section 494 IPC-bigamy?

The learned counsel for the revision petitioners, Mr. P.Jagadeesan, would submit that when the husband has married another lady, after the

divorce, when the decree was in subsistence, viz. till the same was set aside, if he marries another lady, the same would not attract the offence u/s

494 IPC and in aid, he brought to my notice a decision of the Apex Court in Gopal Divedi v. Prabha Divedi (2002) M.L.J. (Crl.) 726.

In the case involved in the above decision also, there was an ex-parte decree, for divorce, on 6.7.1990 and thereafter, the husband therein

married another lady on 25.5.1993. Then, the ex-parte decree came to be set aside on 31.3.1994. The wife preferred a complaint against the

husband on 28.3.1995, alleging that he had committed the offence u/s 494 IPC, which was challenged by the husband, unsuccessfully. Then, the

matter reached the Apex Court. The Apex Court, considering the above facts and circumstances of the case, came to the conclusion that the first

marriage was not subsisting, in view of the ex-parte decree, which continued to be in force on the date of the second marriage and therefore, the

appellant therein, cannot, possibly, be convicted for the offence u/s 494 IPC. More or less, the facts involved in the above decision are similar to

the present case, except the dates.

From the facts and circumstances of the case, narrated by me, it is seen, from 24.9.1998 till the ex-parte decree was set aside, elsewhere in

January, 1999 or so, there was no subsistence of relationship of husband and wife between the first petitioner and the respondent. Only during that

period, when there was no bar for the husband to marry again, the first petitioner had married another lady on 15.11.1998 and certainly, as held

by the Apex Court, this would not attract the penal provision of Section 494 IPC, though subsequently, the relationship between the first petitioner

and the respondent was resumed, after setting aside the ex-parte decree.

The learned counsel for the respondent would contend that on the date of filing of the petition, to set aside the ex-parte order of divorce, notice

was given to the counsel on record for the husband, but on his representation that his client had taken the bundle, notice was taken to the party,

thereby he wants to convey that on the date of filing of the petition, to set aside the ex-parte decree, the husband had knowledge and therefore,

taking advantage of the fact that he had married during the subsistence of the divorce decree, he cannot plead that the offence will not come u/s

494 IPC.

The mere fact, that a petition came to be filed, to set aside the ex-parte decree, will not lead to the inference that the ex-parte decree is going

to be set aside or on that day itself, the ex-parte decree would come to an end, without any further hearing. Though it is said that a petition was

filed in the month of October, 1998, no material is placed before me to substantiate the same. Even assuming that a petition came to be filed in

October, 1998, as seen from the acknowledgment produced by the revision petitioners, the first petitioner was served only on 25.1.1999, thereby

showing that the husband had knowledge, about the petition to set aside the ex-parte decree, only in the month of January, 1999. Admittedly,

before that, i.e. on 15.11.1998, he had married another lady. At the risk of repetition, it should be said that when there was an ex-parte decree for

divorce, in other words, when the relationship between the first petitioner and the respondent, as husband and wife, came to an end, the first

petitioner married another lady and there was no legal bar for that. Therefore, the submission of the learned counsel for the respondent, that mere

filing a petition, to set aside the ex-parte decree ,will amount to ''knowledge'' or will have the effect of setting aside the ex-parte decree, is not

acceptable to me.

Under the above facts and circumstances, it should be held, unhesitatingly, that on the date of marriage of the first petitioner with another lady,

the marriage between the first petitioner and the respondent was not subsisting, has no legal force and this being the established position, certainly,

bigamy will not come to surface, attracting the ingredients required for Section 494 IPC. But, unfortunately, the trial Court, without considering the

above admitted position, as well as the established fact, dismissed the petition, filed by the revision petitioners, u/s 245(2) Cr.P.C., which is not

acceptable to me. Even if the trial is going to be conducted, on the above said facts and circumstances of the case, there is no possibility of roping

in the first petitioner or other petitioners as the persons committed the offence, since on the date of commission of the alleged offence, there was no

relationship of husband and wife subsisting between the first petitioner and the respondent.

u/s 494 IPC, a husband or wife is liable to be punished, if the ingredients of Section are satisfied, which reads:

Whoever, having a husband or wife living, marries in any case in which such marriage is void by reason of its taking place during the life of such

husband or wife, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to

fine.

Exception - This section does not extend to any person whose marriage with such husband or wife has been declared void by a Court of

competent jurisdiction nor to any person who contracts a marriage during the life of a former husband or wife, if such husband or wife, at the time

of the subsequent marriage, shall have been continually absent from such person for the space of seven years, and shall not have been heard of by

such person as being alive within that time provided the person contracting such subsequent marriage shall, before such marriage takes place,

inform the person with whom such marriage is contracted of the real state of facts so far as the same are within his or her knowledge.

Therefore, it should be shown that because of the spouse living, the marriage, which took place later, is void. The mere fact that the spouse is

living, alone, is not sufficient and the relationship viz. wife and husband also should be in subsistence, as understood under law. If, either the

husband or the wife, is divorced, under a valid decree of the Court, then, their relationship comes to an end and they will not come within the

meaning of ''husband'' or ''wife'', as the case may be. Therefore, if they re-marry during that period, the marriage cannot be void, so as to bring that

husband or wife, within the ambit of Section 494 IPC.

In this case, as discussed, because of the divorce decree, granted by the Court, the complainant viz. the respondent, ceased to be the wife of

the first petitioner on the date of the second marriage of the first petitioner, thereby making that marriage not void, thus excluding this husband from

the purview of Section 494 IPC.

In this view, on the admitted facts, when the respondent/complainant was not the wife of the first petitioner, in the legal sense, on the date of

the second marriage of the first petitioner with another lady, the respondent cannot complain that the first petitioner/husband violated Section 494

IPC. Therefore, trying the first petitioner and his relatives viz. the other respondents, as if they have abetted the offence, should be a futile exercise,

waste of time by the Court. In view of the admitted position, it is to be held that the charge against the accused is groundless and it need not be

proceeded further, since it would amount to not only wasting the time of the Court but also wasting the time of the parties.

In the light of the above discussion and on the basis of the admitted position and relying upon the Supreme Court ruling, I am of the considered

opinion that no offence has been made out, prima facie, against anyone of the accused, warranting further continuation of proceedings, which may

be an unnecessary exercise and the same should be curtailed, preventing unnecessary ordeal for the accused, who belong to the same family.

For the foregoing reasons, the Criminal Revision Case is allowed, setting aside the order dated 6.6.2003 made in Crl.M.P. No. 5107 of 2002 in

C.C. No. 164 of 2000 by the learned Judicial Magistrate No. 2, Salem and C.C. No. 164 of 2000 on the file of the Judicial Magistrate No. 2,

Salem is quashed. All the accused are ordered to be discharged from the case.

Consequently, Crl.M.P. No. 12858 of 2003 is closed.