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Gujarat High Court · body

2016 DIGILAW 1823 (GUJ)

Krishnakumar Chhabildas Varma v. State of Gujarat

2016-08-29

VIPUL M.PANCHOLI

body2016
JUDGMENT : VIPUL M. PANCHOLI, J. This application is filed under Section 482 of the Code of Criminal Procedure, 1973 (hereinafter referred to as ‘the Code’ for short), for quashing and setting aside the private criminal complaint being Inquiry Case no. 20 of 2013 filed by respondent no. 2 which is pending in the Court of J.M.F.C, Naliya, Kachhch and the order dated 17.10.2013 passed therein for issuance of the process against the applicants. 2. Heard learned advocate Mr. Hitesh Acharya for the applicants, learned Additional Public Prosecutor Mr. Mehta for the respondent-State and learned Mr. Pandya for respondent no. 2-complainant. 3. Learned advocate Mr. Acharya appearing for the applicants submitted that marriage between the applicant no. 1 and respondent no. 2 was solemnized on 16.3.2002 at Rajasthan as per Hindu custom. However, because of the dispute between them, respondent no. 2 was residing separately. Learned advocate submitted that the applicant no. 1 filed Hindu Marriage Petition No. 102 of 2011 before the Principal Senior Civil Judge, Kachchh at Bhuj against the respondent no. 2 under Section 13 of the Hindu Marriage Act for dissolution of the marriage. It is submitted that the Principal Senior Civil Judge, Bhuj, by an order dated 27.8.2012, allowed the petition filed by the applicant no. 1 and thereby the marriage solemnized between the applicant no. 1 and respondent no. 2 was dissolved with immediate effect under Section 13 of the Hindu Marriage Act. However, it is submitted that the said order was passed ex-parte as the respondent no. 2 did not remain present during the said proceedings. 4. Learned advocate Mr. Acharya thereafter submitted that after waiting for reasonable time, the marriage of applicant no. 1 was solemnized with the applicant no. 2 on 1.4.2013 and the same is registered on 30.4.2013. The certificate of registration of marriage is produced at page 29 of the compilation. It is further submitted that after the marriage between the applicants, Additional District Judge, Kachchh in Civil Appeal No. 12 of 2013 filed by respondent no. 2 quashed the order passed by Principal Senior Civil Judge, Bhuj in Hindu Marriage Petition No. 102 of 2011 and remanded the matter back to the said Court. It is submitted that the said order was passed on 23.9.2013 i.e after the marriage of applicant no. 1 was solemnized with applicant no. 2 quashed the order passed by Principal Senior Civil Judge, Bhuj in Hindu Marriage Petition No. 102 of 2011 and remanded the matter back to the said Court. It is submitted that the said order was passed on 23.9.2013 i.e after the marriage of applicant no. 1 was solemnized with applicant no. 2 on 1.4.2013 and therefore on the date of the marriage between the applicants, the order passed by the Principal Senior Civil Judge in Hindu Marriage Petition No. 102 of 2011 was in force, that means, on the date of the marriage between the applicants, the marriage of applicant no. 1 which was solemnized with respondent no. 2 was dissolved. Hence, the ingredients of the alleged offences in the impugned complaint are not made out. He, therefore, submitted that the impugned complaint be quashed and set aside. 5. Learned advocate Mr. Acharya has placed reliance upon the judgment rendered by the Hon'ble Supreme Court in the case of Kirshna Gopal Divedi v. Prabha Divedi, reported in (2002) 10 SCC 216, in support of his contentions. 6. On the other hand, learned advocate Mr. I.M Pandya appearing for the respondent no. 2 submitted that though the summons was not duly served to the respondent no. 2 in Hindu Marriage Petition no. 102 of 2011, the Principal Senior Civil Judge, Bhuj passed an order on 27.8.2012, by which the marriage which was solemnized between applicant no. 1 and respondent no. 2 was dissolved. Hence, the applicant no. 1 has played mischief with the said Court and therefore when the respondent no. 2 has pointed out the correct aspects before the appellate Court, the appellate Court quashed and set aside the order passed in Hindu Marriage Petition No. 102 of 2011 and now the matter is remanded back to the said Court. Hence, as on date, the order passed by the Principal Senior Civil Judge, Bhuj in Hindu Marriage Petition No. 102 of 2011 is not in force and therefore ingredients of Section 494 of Indian Penal Code are clearly made out. Hence, the present application be dismissed. Learned advocate Mr. Pandya thereafter referred to the affidavit filed by respondent no. 2 and submitted that as per the proceedings initiated by the applicant no. 2 i.e Civil Suit No. 1060 of 2012 filed before the Civil Judge (J.D), Ambala, the date of marriage of applicant no. 1 and applicant no. Hence, the present application be dismissed. Learned advocate Mr. Pandya thereafter referred to the affidavit filed by respondent no. 2 and submitted that as per the proceedings initiated by the applicant no. 2 i.e Civil Suit No. 1060 of 2012 filed before the Civil Judge (J.D), Ambala, the date of marriage of applicant no. 1 and applicant no. 2 is 29.9.2012 and therefore it is contended that immediately after the order dated 27.8.2012 was passed by Principal Senior Civil Judge, marriage between the applicant no. 1 with applicant no. 2 was solemnized in September, 2012 and therefore when the ingredients of the alleged offence are made out in the impugned complaint, this Court may not exercise the powers under Section 482 of the Code. Hence, this application be dismissed. Learned APP has also supported the contentions raised by learned advocate appearing for respondent no. 2. 7. Having considered the submissions canvassed on behalf of learned advocates appearing for the parties and having gone through the material produced on record, it is not in dispute that the Principal Senior Civil Judge, Bhuj passed an order on 27.8.2012 in Hindu Marriage Petition No. 102 of 2011, whereby the marriage which had taken place between the applicant no. 1 and respondent no. 2 was dissolved. No doubt, the said order was an ex-parte order but the fact remains that the competent Court passed an order by which the marriage was dissolved between the parties. Thereafter, in appeal filed by respondent no. 2, the appellate Court passed an order on 23.9.2013, by which the order dated 27.8.2012 passed in Hindu Marriage Petition No. 102 of 2011 was set aside. However, before the said order was quashed and set aside by appellate Court, the applicant no. 1 married with applicant no. 2 on 1.4.2013. The marriage registration certificate is produced at page no. 29. Thus, it cannot be said that on the date of the marriage between the applicants, respondent no. 2 was legally wedded wife of the applicant no. 1 in view of the decree of dissolution passed by the competent Court. 8. If the facts of the present case are seen in light of the decision rendered by the Hon'ble Supreme Court in the case of Krishna Gopal Divedi (supra), it is clear that the facts of the present case are identical. 1 in view of the decree of dissolution passed by the competent Court. 8. If the facts of the present case are seen in light of the decision rendered by the Hon'ble Supreme Court in the case of Krishna Gopal Divedi (supra), it is clear that the facts of the present case are identical. In the case decided by Hon'ble Supreme Court, the Hon'ble Supreme Court has observed in paragraphs 2 to 6 as under: “2. It appears that the appellant secured an ex parte decree divorcing his first wife on 6-7-1990, though the wife says that she never had notice of the said decree or the proceedings commenced by her husband. What the appellant did was to undergo a marriage with another lady on 25-5-1993 presumably on the strength of the ex parte decree secured by him. But his good days with the newly married wife did not last long as the first wife succeeded in getting the ex parte decree set aside on 31-3-1994. The fact remains that there is no decree of divorce as between the appellant and his first wife ever since 31-3-1994. 3. The first wife filed a complaint against the appellant on 28-3-1995 alleging that the appellant has committed the offence under Section 494of 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. Learned counsel for the respondent contended that the appellant is guilty of adultery at least from the date 31-3-1994. We are not considering that aspect since no complaint has been filed by the first wife against the appellant on that score. 6. 5. Learned counsel for the respondent contended that the appellant is guilty of adultery at least from the date 31-3-1994. We are not considering that aspect since no complaint has been filed by the first wife against the appellant on that score. 6. As it is, we feel that the criminal proceeding now pending against the appellant for the offence under Section 494 of the IPC is only and exercise of futility. We do not want the criminal Court to waste its time for that purpose.” 9. Keeping in mind the decision rendered by the Hon'ble Supreme Court in the aforesaid case coupled with the facts of the present case, I am of the view that in the present case also, the ingredients of the alleged offences are not made out. 10. In view of the above, this application is allowed. The private criminal complaint being Inquiry Case no. 20 of 2013 filed by respondent no. 2 which is pending in the Court of J.M.F.C, Naliya, Kachhch and the order dated 17.10.2013 passed therein for issuance of the process against the applicants are quashed and set aside. Rule is made absolute.