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2003 DIGILAW 56 (JK)

Som Raj v. Kunti Devi

2003-03-26

B.L.BHAT

body2003
Through the medium of the petition under Section 561-A Cr. P.C, the petitioners/accused have sought indulgence of this Court for quashment of proceedings as well as criminal complaint filed by the respondent titled as Kunti Devi v. Som Raj and Others for offences under Section 494 read with Section 109 RPC, pending decision before the court of learned Sub-Judge, Judicial Magistrate, Jammu. It is inter alia maintained in the petition that the respondent was legally wedded wife of the petitioner No. 1. The respondent avoided the society of the petitioner No. 1 and deserted him which compelled the petitioner No. 1 to file a divorce petition on 11.1.1996 against her before the court of learned Additional District and Sessions Judge Gurdaspur. That the learned Additional District and Sessions Judge, Gurdaspur summoned the respondent who caused appearance before his court and filed detailed objections, her statement recorded and finally a decree for divorce came to be passed on 9.3.1999 by the said court dissolving the marriage in between the parties. That the respondent has filed a criminal complaint in question against the petitioners for an offence under Section 494 on wrong facts. That the learned Magistrate took cognizance of the offence order section 494 read with section 109 RPC by virtue of order dated 12.2.2002 when the petitioners having committed no offence because the complaint itself is that the marriage in between the petitioner No. 1 and respondent have come to end by virtue of Divorce Deed passed by Additional District Judge Gurdaspur dated 9.3.1999. 2. It appears that complaint under Section 494 read with Section 109 RPC came to be filed by the respondent before the learned Sub-Judge, Judicial Magistrate, Jammu alleging therein inter alia that she is legally wedded wife of the petitioner/accused No. 1 and their marriage was solemnized on 8.5.1989 at Vijay Pur in accordance with the Hindu rites and ceremonies and out of this wed lock, the parties have two children. That after the marriage, petitioner No. 1 did not treat the respondent her wife well and finally the petitioner No. 1 filed an application under Section 13 of the Hindu Marriage Act against her before the Additional District Judge, Gurdaspur who decreed the matter. That after the marriage, petitioner No. 1 did not treat the respondent her wife well and finally the petitioner No. 1 filed an application under Section 13 of the Hindu Marriage Act against her before the Additional District Judge, Gurdaspur who decreed the matter. This decree came to be challenged in appeal by her before the Honble High Court of Punjab and Haryana, where the appeal came to be accepted and said decree of divorce came to set aside on 1.5.2001. That on 8.3.2001, the petitioner No. 1 contracted second marriage with the respondent accused No. 3 in accordance with Hindu rites and ceremonies and this Act of the accused was detted by the remaining accused and presently they are living as husband and wife at Sunder Check Mehta Tehsil Pathankot District Gurdaspur. 3. Heard learned counsel for the parties and have considered their rival contentions. 4. The perusal of the complaint in question reveals that divorce petition filed by the petitioner No. 1 against respondent came to be decided in the month of March, 1999. It, is alleged that Som Raj the respondent accused No. 1 solemnized his second marriage on 8.3.2001 with the respondent No. 3, when the decree of divorce obtained by him came to be set aside in an appeal by the Honble High Court of Punjab and Haryana on 1.5.2001. Thus on the own showing of the respondent complainant, it is manifest that on 8.3.2001 when the petitioner allegedly contracted second marriage with respondent No. 3, the marriage in between the petitioner and the respondent No. 1 was not subsisting. The Apex Court in a case titled as Krishna Gopal Divedi v. Prabha Divedi, AIR 2002 SC 389, where the facts of the case are that Krishna Gopal Divedi, the appellant secured an ex-parte decree divorcing his first wife on 6.7.1990, later on he contracted second marriage with another lady on 25.5.1993 on the strength of ex-parte decree. The ex parte decree secured by him was set aside on 31.3.1994. The wife filed a complaint under section 494 I.P.C against he husband, the husband approached High Court of Allahabad for quashing the criminal proceedings, the High Court came to reject the application. The husband went in appeal before the Apex Court, wherein their Lordships in para No. 3 and 4 of their judgments have observed that: "3. The wife filed a complaint under section 494 I.P.C against he husband, the husband approached High Court of Allahabad for quashing the criminal proceedings, the High Court came to reject the application. The husband went in appeal before the Apex Court, wherein their Lordships in para No. 3 and 4 of their judgments have observed that: "3. The first wife filed a complaint against the appellant on 28.3.1995 alleging that the appellant has committed the offence under Section 494 of the IPC. On receiving the process issued by the Criminal Court the appellant moved the High Court of Allahabad for quashing the criminal proceedings. The main plank adopted by the appellant is that on the date when he conducted the second marriage the first marriage was not subsisting in view of the ex-parte decree which continued in force on the said date. 4. Learned counsel for the respondent (first wife) did not dispute the fact that she moved for setting aside the ex parte decree and succeeded in it when an order was passed on 31.3.1994. As per that order the ex-parte decree of divorce dated 6.7.1990 was set aside. If that be so, appellant cannot possibly be convicted for the offence under Section 494 of IPC on premise that he had undergone a ceremony of marriage with another lady on 25.5.1993." 5. Having regard to the aforesaid ratio of the Apex Court and from the perusal of the complaint it is manifest that pursuant to the passing of decree of divorce on 9.3.99, the respondent No. 1 contracted second marriage with respondent No. 3 on 8.3.2001 and this decree of divorce came to be set aside by Honble High Court of Punjab and Haryana on 1.5.2001. The certified copy of the Divorce Deed on the file also reveals that decree in between the petitioner No. 1 and respondent came to be passed on 9.3.1999 by virtue of which their marriage came to be dissolved. This being so on the date of alleged second marriage by the petitioner No. 1 with the respondent No. 3, his first marriage with the respondent was not subsisting. 6. This being so on the date of alleged second marriage by the petitioner No. 1 with the respondent No. 3, his first marriage with the respondent was not subsisting. 6. Viewed thus, the petition is allowed and the complaint in question titled a Smt. Kunti Devi v. Som Raj file No. 142 instituted on 24.11.2001 pending decision before the learned Judicial Magistrate, Sub-Judge, Jammu and the order dated 12.2.2002 by virtue of which cognizance of the offences under Section 494 read with section 109 RPC has bee taken and process issued against the petitioner/accused is quashed. Record of the case together with copy of this order be sent to the trial court forthwith for information.