Research › Search › Judgment

Karnataka High Court · body

2015 DIGILAW 1279 (KAR)

Ramesh v. Rekha

2015-11-24

R.B.BUDIHAL

body2015
ORDER : Budihal R.B., J. 1. This is the case wherein respondent herein, who is the wife of petitioner No. 1 herein filed the private complaint under Section 200 Cr.P.C. before JMFC-III Belagavi alleging that she is the wife of petitioner No. 1 herein and her marriage with petitioner No. 1 was performed on 02.05.1999 at Annigeri Village in Gadag District. After the marriage, she led the marital life with accused No. 1. In the said wedlock, a female child by name Neha was born. It is further pleaded that immediately after the marriage, the relationship between the complainant and accused No. 1 was not cordial since from the time of their marriage. It is further alleged that accused No. 1, his parents and sister were harassing the complainant on one or the other pretext physically and mentally. 2. The further allegation made that respondent herein filed a petition under Section 125 of Cr.P.C. claiming maintenance for herself and her daughter in Cri. Misc. No. 82/2003 and the maintenance amount was granted. The further allegation that accused No. 1 filed the divorce petition in M.C. No. 130/2008 and the said matter is pending before the Senior Civil Judge Court at Dharwad sitting at Navalgund and there is no severance of status between complainant and accused No. 1 as husband and wife. 3. It is the further allegation that accused No. 1 married accused No. 2 as his 2nd wife during the subsistence of the first marriage. The other accused persons i.e., accused Nos. 3 to 7 have participated in the said marriage and hence, they have also instigated the bigamous marriage of accused No. 1 with accused No. 2. Therefore, the accused persons have committed the offence under Section 494 and 107 of IPC, the trial Court took cognizance of the offence and then issued the process to the accused persons. 4. Heard the arguments of the learned counsel appearing for the petitioners-accused and also the learned counsel appearing for the respondent-complainant. 5. Learned counsel for the petitioners has submitted that there is no mention about the date of alleged 2nd marriage. It is also submitted that before filing the private complaint under Section 200 Cr.P.C., the complainant and her relatives obtained the birth extract of Chetan, who alleged to have born through accused Nos. 1 and 2. 5. Learned counsel for the petitioners has submitted that there is no mention about the date of alleged 2nd marriage. It is also submitted that before filing the private complaint under Section 200 Cr.P.C., the complainant and her relatives obtained the birth extract of Chetan, who alleged to have born through accused Nos. 1 and 2. Hence, submitted that after that compromise was effected between the parties, but inspite of such a compromise, complainant has filed the present complaint. It is also submitted that no prima-facie material was placed before the trial Court to show that petitioners herein committed the alleged offence about bigamous marriage between accused No. 1 and accused No. 2 and other accused persons instigated accused Nos. 1 and 2. Hence, submitted to allow the petition as the matter requires consideration in this petition. 6. Per contra, learned counsel for the complainant-respondent herein submitted that in the complaint, it is specifically alleged that accused Nos. 3 to 7 have participated in the 2nd marriage of accused No. 1 with accused No. 2. He has submitted that complainant's evidence was recorded before the trial Court, wherein also she has deposed on oath about the allegations made in the complaint. It is also his submission that the birth extract of Chetan clearly shows that there was a 2nd marriage between accused No. 1 and accused No. 2. Hence, submitted that there is no merit in the petition and same is to be dismissed. 7. Perused the averments made in the petition, private complaint No. 163/2014 filed under Section 200 of Cr.P.C. before the JMFC-III Belagavi, and also the order passed by the trial Court issuing the process to the accused persons. 8. Looking to the materials placed on record so far as the 2nd marriage between the accused No. 1 and accused No. 2 is concerned, paragraph No. 5 of the private complaint is relevant, which is as under: "5. It is submitted by the complainant that she came to know about the second marriage of the accused No. 1 with accused No. 2 through her well wishers and obtained the birth certificate of a child by name Chetan wherein the names of accused No. 1 is appearing as father and name of accused No. 2 is appearing as mother. It is submitted by the complainant that she came to know about the second marriage of the accused No. 1 with accused No. 2 through her well wishers and obtained the birth certificate of a child by name Chetan wherein the names of accused No. 1 is appearing as father and name of accused No. 2 is appearing as mother. Further the complainant enquired about the second marriage of accused No. 1 with accused No. 2 in the locality of accused No. 1 and they confirmed about the second marriage of accused No. 1 with accused No. 2 and the birth of child by name Chetan out of the said wedlock." So this shows that complainant is not the eye-witness to the bigamous marriage between accused No. 1 and accused No. 2, but it is stated by her that she came to know through her well-wishers. It is also stated in the said paragraph that she has also made enquiry in the locality and confirmed about the 2nd marriage of accused No. 1 with accused No. 2, but there is no mention in the entire complaint about who are the witnesses, who personally witnessed the 2nd marriage, even there is no mention about the names of the persons in the locality with whom the complainant made enquiry. 9. Looking to these aspects of the matter so far as accused Nos. 3, 4 and 5 herein, who are the petitioners Nos. 2, 3 and 4, I am of the opinion that no acceptable material was placed before the trial Court while taking cognizance and issuing process to the said persons. But so far as petitioner No. 1-accused No. 1, there is allegation in the complaint that he married accused No. 2 and Chetan was born to accused Nos. 1 and 2. The complainant has also produced the birth extract in respect of Chetan, wherein accused No. 1 is mentioned as father and accused No. 2 is mentioned as mother of the said child as observed by the trial Court. This shows that so far as accused Nos. 1 and 2 are concerned, complainant placed prima-facie material. 10. Therefore, so far as petitioner No. 1-accused No. 1 is concerned there is no merit in this petition as prima-facie case is made out against him, hence, petition in respect of petitioner No. 1-accused No. 1 is dismissed. But so far as petitioner Nos. 1 and 2 are concerned, complainant placed prima-facie material. 10. Therefore, so far as petitioner No. 1-accused No. 1 is concerned there is no merit in this petition as prima-facie case is made out against him, hence, petition in respect of petitioner No. 1-accused No. 1 is dismissed. But so far as petitioner Nos. 2, 3 and 4, who are accused Nos. 3, 4 and 5, there is no prima-facie material placed by the complainant as against them. Hence, in respect of petitioner Nos. 2, 3 and 4 (accused Nos. 3, 4 and 5) petition is allowed and the proceedings initiated against these three petitioners are hereby set-aside. With these observations, petition is disposed of.