Urmila Devi vs Bhima Ram

V.P. Bhatnagar, J.—This Criminal Revision is directed against the order dated April 11, 1987 of the learned Sub-Divisional Judicial Magistrate, Rampur Bushahar, whereby he discharged the accused in a complaint filed u/s 493 and 495 I.P.C. The m complaint had been made by Urmila Devi alleging that accused Bhima Ram took her to Nirmand on January 18, 1986 by offering an allurement of marriage. He had two residential houses there and kept her in one of them situated at a distance of one kilometer from the other. He kept her in total darkness about the factum of his first marriage and also that he had his first wife and three children from her alive. Infect, he represented that he was unmarried. Thus, through deceitful means, he married her according to custom on February 25, 1986 when an agreement of marriage was also prepared and handed over to her, in this way he committed offence punishable u/s 493 and 495 IPC

In support of the above allegations, Urmila Devi herself stepped into the Witness box as PW-1 and also examined PW-2 Shyam Lal and PW-3 Khushal Singh hi support of her case. The learned trial Magistrate, however, was of the view that the complainant was not an aggrieved person within the ambit of Section 198 of the Code of Criminal Procedure and, therefore, proceeded to discharge the accused by his judgment, which is presently under challenge. While doing so, he relied upon the law laid down by the Punjab and Haryana High Court in Jarmal Singh v. Swaran Kaur 1976 CLT 680

In view of what has been stated-above, the only point which requires determination at this stage for the purpose of disposal of the present revision petition is if Urmila Devi is an aggrieved person and can maintain the complaint instituted by her. Now Section 494 and 495 of the Penal Code read as follows:

494, Marrying again during lifetime of husband or wife:

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 his 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.

Same offence with concealment of former marriage from person with whom subsequent marriage is contracted

Whoever commits the offence defined in the last preceding section-having concealed from the person with whom the subsequent marriage is contracted, the fact of the former marriage, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.

There is hardly any scope for doubt that the very case of the com-plainant is that accused Bhima Ratn had a wife living on February 25 1986 and farther-that he married her in spite of the above fact. If so, such marriage is void abilities under the provisions of the Hindu Marriage Act which applies to the parties. An offence u/s 494 is, therefore, prima facie made out. This offence however, takes an aggravatecd from where the fact of former marriage is concealed from the person with whom the subsequent marriage is contracted. This precisely is Urmila Devi''s case. Therefore commission of offence u/s 495, U.P.O. is prima facie disclosed on the averments made in the complaint and the primary evidence tendered in support thereof. The very language of Section 494 ibid shows that the woman with wham second marriage is sought to be contracted is the victim. She is: certainly an aggrieved person within the meaning of Section 198 of the Code of Criminal Procedure. It may also be noted, here that the law laid down in Jarnml Singh relied upon by the Court below has been over-ruled by a Division Bench of the Punjab and Haryana High Court itself in Balbir Singh v. Darshana Kumari Marriage Law Journal 462-(1980 HLR 672 (Punjab and Haryana).

In the above view of the matter, the order dated April, 11, 1987 of the learned Sub-Divisional Judicial Magistrate Rampur Bhushahar is hereby set-aside, with the directions that the case be sent back to him for proceeding to dispose of the complaint in accordance with law. The, parties are directed to appear before the said Court on October 5, 1989.