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2013 DIGILAW 644 (HP)

Meena Kumari v. Bhupender Kaushal

2013-07-04

DHARAM CHAND CHAUDHARY

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JUDGMENT Dharam Chand Chaudhary, J.(Oral): The challenge herein is to the judgment dated 8th March, 2011 passed by learned Additional Sessions Judge, Mandi, camp at Karsog in criminal appeal No.3 of 2008 whereby while accepting the appeal preferred by the respondents (hereinafter referred to as ‘the accused persons’) against the judgment dated 29.11.2007 passed by learned Sub Divisional Judicial Magistrate, Karsog, district Mandi in private complaint No.342-1 of 2001, convicting thereby them under Sections 493 read with Section 120-B of Indian Penal Code and sentencing to undergo simple imprisonment for two years and also to pay a fine of `2000/- each, has acquitted them from the charge. 2.The legality and validity of the impugned judgment has been assailed on the grounds, inter alia, that learned lower appellate Court has miserably failed to appreciate the evidence qua the earlier marriage of accused No.1 subsisting on the day when he solemnized the 2nd marriage with appellant herein (hereinafter referred to as ‘the complainant’) in February, 2001. Also that the findings recorded by learned lower appellate Court that there was no valid marriage subsisting between said Smt. Kamlesh and accused No.1, are said to be without any basis. The accused persons have hatched conspiracy with each other by representing that the marriage of accused No.1 with Smt. Kamlesh was dissolved and made her agreeable to solemnize the marriage with accused No.1 and as such, have committed the offence punishable under Section 493 of Indian Penal Code. The accused, therefore, were rightly convicted by the trial Court and, as such, the impugned judgment being legally and factually unsustainable is sought to be quashed and set aside. 3.In a nutshell, the allegations against the accused persons are that accused No.1 was married to one Smt. Kamlesh (PW-6). All the accused represented to the father (PW-2) of complainant (PW-1) that the marriage of said accused with Smt. Kamlesh stands dissolved by way of divorce. The complainant and her father believed such a representation made to them to be true and settled her marriage with accused No.1. Admittedly, the marriage was solemnized as per Hindu Rites and customs on 28.2.2001. They started living as husband and wife and cohabited as such. It is on 6.8.2001, one relative of Smt. Kamlesh, the previous wife of accused No.1, came to the Pradhan, Gram Panchayat, Thali and asked for the certificate of her marriage with the said accused. Admittedly, the marriage was solemnized as per Hindu Rites and customs on 28.2.2001. They started living as husband and wife and cohabited as such. It is on 6.8.2001, one relative of Smt. Kamlesh, the previous wife of accused No.1, came to the Pradhan, Gram Panchayat, Thali and asked for the certificate of her marriage with the said accused. The said relative of the previous wife further disclosed that the marriage of accused No.1 was still subsisting with her and further that it is the said accused who had abandoned and turned her out from the matrimonial home after subjecting her to cruelty. In turn, the Pradhan, Shri Thakur Dass informed the father of the complainant about the subsistence of the previous marriage of accused No.1 with said Smt. Kamlesh. On this, the brother of complainant, Roshan Lal came to Shimla where she was residing with accused persons. On verification from the accused persons, they produced certain papers pertaining to some case of dowry. The accused, however, assured the brother of complainant to show him the relevant papers in near future. The accused No.1 had taken the complainant to her parental house on 18.8.2001 and after leaving her there returned on 19.8.2001 in the morning assuring her that he will show the papers of divorce very soon, however, did not turn-up till 8th September, 2001. On this, the complainant went to his residence alongwith her father, Duni Chand, Shri Thakur Dass, Pradhan, Gram Panchayat, Thali, brother, Roshan Lal, Prem Lal and other Roshan Lal. The accused persons told them to wait for one month and complainant was again made to cohabit with accused No.1. As agreed, on 2.10.2001, all the aforesaid relatives of the complainant came to the house of the accused persons. She, however, was turned out from the matrimonial home and all the accused manhandled them and also proclaimed that accused No.1 is not a divorcee and they can do whatever they want. The complainant returned to her parental house and started living there. 4. With the above allegations, she filed the complainant in the trial Court for initiating proceedings under Sections 493, 420, 494 and 506 read with Section 120-B of Indian Penal Code. Learned trial Magistrate having taken on record the preliminary evidence and the material available on record had taken the cognizance and issued the process against the accused persons. 4. With the above allegations, she filed the complainant in the trial Court for initiating proceedings under Sections 493, 420, 494 and 506 read with Section 120-B of Indian Penal Code. Learned trial Magistrate having taken on record the preliminary evidence and the material available on record had taken the cognizance and issued the process against the accused persons. On hearing them and taking into consideration the record, accused No.1 was charge-sheeted for the commission of an offence punishable under Sections 493, 494, 495, 420 read with Section 120-B of Indian Penal Code and the remaining accused under Section 420 read with Section 120-B of Indian Penal Code. The accused did not plead guilty to the charge so framed and claimed trial. Therefore, the complainant in support of her case stepped in the witness box as CW-1, her father Shri Duni Chand as CW-2. CW-3 Shri Mohan Lal is the priest who solemnized the ceremonies of marriage. CW-4, Shri Thakur Dass is the Pradhan of Gram Panchayat, Thali and CW-5 Shri Hem Ram was a neighbour of accused persons in U.S. Club, Shimla. CW-6 is Smt. Kamlesh who claims herself to be the first wife of accused No.1. 5. On the other hand, the accused persons in their statements recorded under Section 313 Cr.P.C. have denied each and every circumstance appearing against them in the evidence produced by the complainant and accused Nand Kishore has himself stepped in the witness box as DW-1. They have also examined S/Shri Roshan Lal and Malak Ram as DW-2 and DW-3 to show that the complainant Meena Kumari is the legally wedded wife of accused No.1 and his marriage was not solemnized with Smt. Kamlesh. Learned trial Court after holding the full trial has not found any case having been made out against accused No.1 under Sections 494, 495 and 420 of Indian Penal Code, however, it is only a case under Section 493 read with Section 120-B of Indian Penal Code, was found to have been made out against all the accused and they were convicted as well as sentenced by the trial Court. 6. 6. Learned counsel appearing on behalf of the complainant-appellant has forcefully contended that from the record, a case for the commission of an offence punishable under Section 493 read with Section 120-B of Indian Penal Code is clearly made out against the accused persons and, as such, they were rightly convicted and sentenced by the learned trial Court. The lower appellate Court is said to have misread and misconstrued the evidence and according to learned counsel, the judgment is not legally sustainable. Learned counsel has also drawn the attention of this Court to the law laid down by the Apex Court. 7. On the other hand, learned counsel representing the accused-respondents has forcefully contended that the present is not a case of any deceitful representation made by them to the complainant or her father and also that the marriage of accused No.1 with CW-6, Smt. Kamlesh is not at all proved in accordance with law. Also that mere admission in his statement under Section 313 Cr.P.C. during the course of criminal proceedings launched by said Smt. Kamlesh, cannot be taken as proof of a legal and valid marriage. 8.Be it stated that all the accused have been convicted and sentenced for the commission of an offence punishable under Section 493 read with Section 120-B of Indian Penal Code by learned trial Magistrate. They, however, have been acquitted by learned lower appellate Court while arriving at a conclusion that no case against them is made out. In this backdrop, it is desirable to take note of as to what constitute an offence punishable under Section 493 of Indian Penal Code, at the very outset. The bare reading of this section reveals that the same contains two essential ingredients, i.e. (i) deceit causing a false belief in the existence of a lawful marriage; and (ii) cohabitation or sexual intercourse with a person in that belief. 9.In the case in hand, there is no quarrel so as to the solemnization of marriage by complainant with accused No.1. The same in view of the admission of the accused persons and also the complainant party, has been solemnized as per Hindu rites and customs. 9.In the case in hand, there is no quarrel so as to the solemnization of marriage by complainant with accused No.1. The same in view of the admission of the accused persons and also the complainant party, has been solemnized as per Hindu rites and customs. A reference to this effect can be made to the evidence as has come on record by way of the testimony of CW-3, Mohan Lal, who as a matter of fact, is the priest and a witness to the solemnization of the marriage in accordance with Hindu rites and customs. The only grouse of the complainant party is to the limited extent that at the time of settlement of marriage of accused No.1 with complainant, all the accused have falsely represented that the marriage of accused No.1 with CW-6, Smt. Kamlesh stands dissolved by way of divorce and that it is on this representation, CW-2, father of the complainant agreed for her marriage with accused No.1. Any how, accused No.1 and the complainant lived together in the matrimonial home as husband and wife and had cohabited also. Though the allegations are that the marriage of accused No.1 with Smt. Kamlesh still subsists and not dissolved, about which they came to know from Shri Thakur Dass (CW-4), Pradhan, Gram Panchayat, Thalli. CW-4 came to know about the subsistence of the marriage of accused No.1 with said Smt. Kamlesh from one person who allegedly proclaimed himself to be her uncle, when came to him for obtaining the certificate qua her marriage with the said accused. The so called person or uncle of Smt. Kamlesh has not been examined. The facts, however, remain that the complainant has failed to prove that the marriage of accused No.1 with Smt. Kamlesh was solemnized as per Hindu rites and all ceremonies performed. The statement of Smt. Kamlesh while in the witness box as CW-6 reveals that she only states about her marriage with accused No.1 on 16th April, 1994. There is nothing in her statement that all the ceremonies and customs were performed and taken care of at the time of solemnization of the marriage. No doubt, in her cross- examination she speaks about the solemnization of her marriage in some temple at Kararaghat by some Pandit, who according to her was called by her father. There is nothing in her statement that all the ceremonies and customs were performed and taken care of at the time of solemnization of the marriage. No doubt, in her cross- examination she speaks about the solemnization of her marriage in some temple at Kararaghat by some Pandit, who according to her was called by her father. She further states that the entries qua the marriage were made in the register maintained in the temple. She, however, failed to disclose the name of Pandit, who was brought for performance of the marriage ceremonies. The name of Pujari has also not been disclosed. No effort has been made by the complainant for getting the record of the temple produced nor is the Pujari examined. 10.True it is that accused No.1 in his statement under Section 313 Cr.P.C. Ex.PW-6/D recorded in a criminal case registered against him and his co-accused had admitted said Smt. Kamlesh as his wife while answering question No.2 and stated that Smt. Kamlesh was married to him on 16.4.1994 at Kararaghat temple according to Hindi rites and ceremonies. However, the complainant has not produced any other and further evidence to show that all rituals and ceremonies as required in accordance with law for a valid marriage were performed. The onus was on the complainant to prove so beyond all reasonable doubt and with the help of cogent and reliable evidence. The Apex Court in Kanwal Ram and others v. The Himachal Pradesh Administration, AIR 1966 SC 614 has held that in order to prove a valid marriage unless the evidence with respect to solemnization of essential ceremonies is not produced, there cannot be said to be a legally and validly solemnized marriage. This conclusion has been drawn in a case with similar facts where the plea of subsistence of valid marriage was raised, but without producing any evidence qua solemnization of all essential ceremonies required for it. 11.Learned counsel for the complainant has placed reliance on the judgment of Apex Court in A. Subash Babu Versus State of Andhra Pradesh and another, (2011) 7 SCC 616 . The ratio of this judgment is also that in order to constitute a valid marriage, the solemnization of the necessary ceremonies in accordance with personal law governing the parties must be established on record. The ratio of this judgment is also that in order to constitute a valid marriage, the solemnization of the necessary ceremonies in accordance with personal law governing the parties must be established on record. 12.To the similar effect is the ratio of the judgment again that of the Apex Court in Gopal Lal v. State of Rajasthan, AIR 1979 SC 713 relied in A. Subash Babu’s cases supra also. 13.The well-established legal position, therefore, reveals that mere assertions that Smt. Kamlesh was married to accused No.1 without there being any proof thereto is not sufficient to constitute the existence of valid marriage between the complainant and the said accused. The evidence was required to be produced qua solemnization of all ceremonies in accordance with Hindu rites and law. Such evidence in this case is lacking. The present even is not a case where it can be said that there is deceitful representation on the part of the accused persons and that it is pursuant to that the father of the complainant agreed for her marriage with accused No.1. As per own case of the complainant, the accused at the time of settlement of marriage represented that the marriage of accused No.1 with Smt. Kamlesh was already dissolved. Though the accused in their statements recorded under section 313 Cr.P.C. have denied this part of the case being wrong. However, even if, it is taken to be admitted as correct, the complainant and her father were in the knowledge of the marriage of accused No.1 with someone else. Her father being a teacher should have not blindly acted upon such representation of the accused and rather agreed for the marriage of complainant with accused No.1 after due verification and satisfying themselves fully that the marriage of accused No.1, if any, with some other lady stands dissolved. They, however, agreed for this marriage and as such the marriage of accused No.1 with complainant, on the other hand, is an arranged marriage. The complainant while in the witness box has come forward with the version that her marriage with accused No.1 was as per her choice. They, however, agreed for this marriage and as such the marriage of accused No.1 with complainant, on the other hand, is an arranged marriage. The complainant while in the witness box has come forward with the version that her marriage with accused No.1 was as per her choice. Otherwise also, though there are allegations that she has been turned out by the accused persons from the matrimonial home, however, no cogent and reliable evidence in this behalf has come on record and to the contrary, accused No.1 still considers the complainant to be his legally wedded wife. The ratio of the judgment of the Apex Court in Ram Chandra Bhagat Versus State of Jharkhand, (2013) 1 SCC 562 cited on behalf of the complainant is also not applicable in the given facts and circumstances of this case for the reason that in the case before the Apex Court, the facts were that the complainant and accused developed intimacy and even started residing together and later on the accused made her to fill-up the form for registration of the marriage and acting on such representation of the accused that she is his legally wedded wife cohabited with him and gave birth to two children. However, later on when the accused refused to accept her as his legally wedded wife and rather turned her out from the house, were taken by the Apex Court to constitute deceitful act on the part of the accused as contemplated under Section 493 of Indian Penal Code. This case is, however, distinguishable for the reason that here the accused has not disputed the marriage with the complainant. It is rather she who seems to have abandoned his company for the reasons best known to her, as otherwise there was no occasion for her to leave his company even if the accused failed to produce the papers of divorce, as there is no allegation of maltreatment etc. and the only assertion that when her father and other relatives came to the house of accused persons in October, 2001, when the accused had to produce the papers of divorce, they were manhandled and the complainant was turned out from the matrimonial house, does not constitute any cruelty nor proved in accordance with law. Even except for accused No.1, no charge under Section 493 read with Section 120-B of Indian Penal Code was framed against the other accused persons. Even except for accused No.1, no charge under Section 493 read with Section 120-B of Indian Penal Code was framed against the other accused persons. However, they have also been convicted by the trial Magistrate without their being any charge framed against them, which is not legally sustainable. 14.The re-appraisal of the evidence in the manner aforesaid and the analysis of the given facts and circumstances of this case leads to the only conclusion that the lower appellate Court has not committed any illegality or irregularity while setting aside the judgment of conviction passed by learned trial Court. 15.For all the reasons, there is no merit in this appeal and the same is accordingly dismissed. The personal bonds furnished by the accused persons shall stand cancelled and surety bonds discharged. Pending application(s), if any, shall also stand disposed of.