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2000 DIGILAW 283 (DEL)

DURGA CHARAN HANSDAH v. STATE OF DELHI

2000-03-07

M.S.A.SIDDIQUI

body2000
M. S. A. SIDDIQUI, J. ( 1 ) THIS revision arises out of circumstances which may be shortly stated as follows. ( 2 ) PETITIONER s first wife (respondent No. 2) aggrieved by her husband s conduct inmarrying a second wife laid a complaint under Sections 494/109 Indian Penal Code against himand his second wife Smt. Hansfha. On the complaint being filed, process was issuedagainst the petitioner. After recording pre-charge evidence, the learned Metropolitanmagistrate discharged the petitioner on the ground that the respondent No. 2 hadfailed to prove that the second marriage contracted by the petitioner with Pankajaniattracts the penal provision of Section 494 Indian Penal Code Aggrieved thereby, respondent No. 2 moved the Additional Sessions Judge by filing a revision, which was allowed videorders dated 26. 2. 1997 and the trial court was directed to frame a charge under859section 494 Indian Penal Code against the petitioner. Hence this revision. ( 3 ) ASSAILING validity of the impugned order, learned counsel for the petitioner hasstrenuously urged that the parties being members of the Scheduled Tribe are notgoverned by the provisions of the Hindu Marriage Act (for short "the Act") and thelearned Additional Sessions Judge has committed a patent illegality in applying theprovisions of the Act to the facts of the present case and holding that a prima faciecase under Section 494 Indian Penal Code had been made out against the petitioner. The firstquestion to be considered is whether the parties are governed by the Act. The Actwas passed in 1955 to amend and codify the law relating to marriage among Hindus. Section 5 of the Act prescribes the conditions which have to be fulfilled for thesolemnization of a marriage between two Hindus, i. e. , between two persons definedas Hindus by Section 2 (3) of the Act. The first condition is that neither party has aspouse living at the time of the marriage. Section 11 states "any marriage solemnizedafter the commencement of the Act shall be null and void and may, on a petitionpresented by either party thereto, be so declared by a decree of nullity if it contravenesanyone of the conditions specified in Clauses (1), (IV) and (V) of Section 5". Thereforea marriage between two Hindus is null and void if either of them has a spouse living atthe time of the marriage. That is sufficient to attract the provisions of Section 494 IPC. Thereforea marriage between two Hindus is null and void if either of them has a spouse living atthe time of the marriage. That is sufficient to attract the provisions of Section 494 IPC. Section 17 of the Act provides that any marriage between two Hindus solemnizedafter the commencement of the Act is void if at the date of such marriage either partyhad a husband and wife living. Thus, Section 17 of the Act statutorily recognizes theprinciple of monogamous marriages among Hindus. Provision of Section 17 has tobe read in harmony and conjunction with the provisions of Section 494 of the Penalcode as Section 17 clearly provides that provisions of Sections 494 and 495 IPCshall apply accordingly. The voidness of the marriage under Section 17 of the Act isin fact one of the essential ingredients of Section 494 Indian Penal Code because the secondmarriage will become void only because of the provisions of Section 17 of the Act. [gopal Lal Vs. State of Rajasthan, AIR 1979 SC 713 : Priya Bala Ghosh Vs. Suresh Chandra Ghosh, AIR 1971 Supreme Court 1153: Bhaurao Shankarlokhande and Another Vs. The State of Maharashtra and Another, AIR 1965supreme Court 1564]. A complaint by a Hindu wife against her husband for theoffence of bigamy punishable under Section 494 Indian Penal Code is maintainable as the effect ofsection 17 of the Act is to make Section 494 Indian Penal Code applicable to Hindus. ( 4 ) IN the instant case it is an admitted fact that petitioner and the respondent No. 2are members of the scheduled tribe. Under Section 2 (2) of the Act it has been clearlystipulated that the Act would not apply to members of the Scheduled Tribe unless860there is a notification by the Central Government in the Official Gazette making theact applicable to the Scheduled Tribes. Thus, Sub-section (2) of Section 2 of the Acthas the effect of laying down that persons belonging to the scheduled tribe will inmatters of marriage continue to be governed by the personal law which was hither toapplied to them and not by any of the provisions of the Act unless the Centralgovernment by notification directs that any such provisions should be applicable tothem. No such notification has been produced before the Court. No such notification has been produced before the Court. In this view of thematter, I have no hesitation in coming to the conclusion that the petitioner andrespondent No. 2 are not governed by provisions of the Act and so the provisions ofsection 17 of the Act and Section 494 Indian Penal Code are not attracted to the facts of the presentcase. The petitioner was rightly discharged by the learned Magistrate and thelearned Additional Sessions Judge has committed a manifest illegality in reversingthe order of discharge. Consequently, the impugned order cannot be allowed tostand as it has resulted in flagrant miscarriage of justice. ( 5 ) FOR the foregoing reasons the revisions is allowed and the impugned orderdated 26. 2. 1997 passed by the Additional Sessions Judge is set aside and that ofthe trial court is restored.