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2013 DIGILAW 1062 (MP)

Deepak Marawi v. Kala Bai

2013-09-05

A.K.SHRIVASTAVE

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JUDGMENT A.K. Shrivastave, J. 1. This is an application under Section 482 of Cr.P.C. praying that the Complaint Case No. 1969/2008 pending in the Court of Judicial Magistrate First Class, Mandla filed by respondent/complainant, which has been registered under Section 494 of IPC, be quashed. The respondent filed a complaint case and after recording her testimony under Section 200 and the witnesses under Section 202 of Cr.P.C., a case under Section 494, IPC has been registered against the applicant and notice was issued to him. Indeed, for the quashment of the registration of the case under Section 494 of IPC against the applicant this application under Section 482 of Cr.P.C. has been filed. 2. The contention of Ms. Goel, learned Counsel for the applicant/husband is that the respondent/complainant herself has averred in Para 1 of the complaint that she belongs to Gond community and got married to the applicant according to the custom prevailing in the Gond community in the month of Vaisakh (corresponding month June), 1981. After the marriage two children were also born out of the wedlock of complainant and the present applicant. However, in the month of October, 1990 the applicant upon the insistence of other co-accused persons solemnised valid second marriage according to the custom in the Gond community before the sacred fire and after performing Saptapadi, hence it has been averred in the complaint that the applicant/husband has committed the offence under Section 494 and other accused persons have committed the offence under Section 494/109 of IPC. By placing reliance upon the Division Bench decision of this Court in the case of Kunwar Singh Marko Vs. Shiv Dayal Sarote, ILR [1998] 769, it has been argued by her that in the community of Adivasi Gond, second marriage is permissible and male member is permitted to keep more than one wife and on the same proposition another decision of Single Bench of this Court in the case of Kumari Bai w/o Anand Ram Vs. Anandram Nathu Thakur, (1998) 2 MPLJ 584 , has been relied wherein it has been held that the provisions of Hindu Marriage Act have no applicability in regard to the tribal community wherein second marriage is permissible and if second marriage is solemnised it will not be a void marriage. By putting emphasis on the decision of the Supreme Court in the case of Dr. Surajmani Stella Kujur Vs. By putting emphasis on the decision of the Supreme Court in the case of Dr. Surajmani Stella Kujur Vs. Durga Charan Hansdah, 2001 AIR SCW 711, it has been put forth by learned Counsel that in the Scheduled Tribe community, second marriage is permissible and the provisions of Hindu Marriage Act are not applicable. Hence, it has been prayed that since admittedly the parties are the members of the tribal community as they are Gond, therefore second marriage solemnised by the applicant is not void and is a valid marriage, which is permissible in their community. Hence, no offence has been committed by the applicant. On these premised submissions, it has been prayed that this application under Section 482 of Cr.P.C. be allowed. 3. On the other hand, Shri Saini, learned Counsel appearing for the respondent submits that whether the custom of solemnisation of second marriage is prevailing in the Gond community is a question of fact and enquiry and, therefore, at the threshold the complaint case which the respondent/complainant has filed cannot be dismissed. In support of his contention, learned Counsel has placed reliance upon the Single Bench decision of this Court in the case of Kailash Singh Vs. Mewalal 2002 (1) M.P.H.T. 526 : 2002 (II) MPWN 8 . Hence, it has been prayed that this application under Section 482 of Cr.P.C., be dismissed. 4. Having heard learned Counsel for the parties, I am of the view that this application under Section 482 of Cr.P.C. deserves to be allowed. 5. On bare perusal of the complaint filed by respondent before the learned JMFC, Mandla, it is gathered that the parties are of Gond community and in this regard, Para 1 of the complaint may be seen. Further, it has been averred by the complainant that in the month of Vaisakh of the year 1981, the applicant solemnised a valid marriage with the applicant and in subsequent paragraphs of the complaint there are averments that out of the wedlock of applicant and complainant two children were born. There is no averment in the complaint that complainant does not belong to Gond community. 6. The question now would rest on the pivot as to whether the second marriage is permissible according to the customs of the Gond community and further as to whether the provisions of Hindu Marriage Act are not applicable upon the parties. There is no averment in the complaint that complainant does not belong to Gond community. 6. The question now would rest on the pivot as to whether the second marriage is permissible according to the customs of the Gond community and further as to whether the provisions of Hindu Marriage Act are not applicable upon the parties. The Apex Court in the case of Dr. Surajmani Stella Kujur (supra) has already held that if the parties are of tribal community the provisions of Hindu Marriage Act are not at all applicable which would mean that second marriage is not at all prohibited even if the first wife is alive. The same view has been taken by the Division Bench of this Court in the case of Kunwar Singh Marko (supra), wherein the Chief Justice Shri A.K. Mathur (as His Lordship then was) spoke for the Bench and held that keeping of one more wife is permissible under the customs of Adivasi Gond and because there is no prohibition to solemnise second marriage during the life time of first marriage in the Gond community, the second marriage cannot be said to be void. The same view has been taken in another decision by the learned Single Bench in the case of Kumari Bai w/o Anand Ram (supra). 7. The argument of Shri Saini that first of all the custom should be proved and then only any finding can be arrived at whether the solemnisation of second marriage was permissible or not in the Gond community, at the first blush appears to be quite attractive but on deeper scrutiny I find the same to be devoid of an substance. Indeed, it was incumbent upon the complainant to aver in the complaint that solemnisation of second marriage during the subsistence of first marriage or when the first wife is alive is not permissible in the Gond community. The Apex Court in the case of Dr. Indeed, it was incumbent upon the complainant to aver in the complaint that solemnisation of second marriage during the subsistence of first marriage or when the first wife is alive is not permissible in the Gond community. The Apex Court in the case of Dr. Surajmani Stella Kujur (supra), in Para 13 has taken into account this point and has categorically held that if nowhere in the complaint, it is averred that in an alleged custom having the force of law, which prohibits the solemnisation of second marriage by the accused and the consequences thereof, mere pleading of a custom stressing for monogamy by itself was not sufficient unless and until it is further pleaded that the second marriage was void by reason of its taking place during the life of such husband or wife. The said decision was also in regard to Section 494 of IPC. Needless to say, the complaint case, which has been filed by the complainant/respondent is also under Section 494 of IPC. Since there is absolutely no averment in the entire complaint in this regard, I am of the view that the registration of the case under Section 494, IPC against the applicant is contrary to the law. In this backdrop, the decision of learned Single Bench in the case of Kailash Singh (supra), is quite distinguishable. 8. That apart, if the averments made in Para 7 of the complaint is considered in true perspective, it would reveal that the complainant herself has pleaded that according to the custom the applicant/husband has solemnised second marriage in the month of October, 1990 on the insistence of co-accused persons. Hence, I am of the view that when it is complainant's own case is that valid second marriage was solemnised by her husband, the question of setting motion the offence under Section 494 of IPC does not arise. Ex-consequenti this application under Section 482, Cr.P.C. is allowed and the Complaint Case No. 1969/2008 filed by respondent/complainant, which has been registered under Section 494, IPC pending in the Court of Judicial Magistrate First Class, Mandla stands quashed.