Research › Search › Judgment

Kerala High Court · body

2017 DIGILAW 802 (KER)

Nazar v. Jissa

2017-05-25

B.SUDHEENDRA KUMAR

body2017
ORDER Bhaskaran Pillai Sudheendra Kumar, J. 1. The petitioners are accused in C.C. No. 1232/2015 on the files of the court below. The first respondent is the complainant in this case. The first petitioner is the husband, the second petitioner is the present wife and the third petitioner is the mother of the second petitioner. The allegation is that the first petitioner married the first respondent in accordance with their customary rites on 13.07.2000. Thereafter, without pronouncing talaq or divorcing the second respondent, the first petitioner married the second petitioner. The third petitioner assisted the other petitioners in the said marriage. 2. On the said allegations, Annexure-A1 complaint was filed by the first respondent herein before the court below. The learned Magistrate after recording the sworn statement of the complainant and one witness, took cognizance for the offences under Sections 494 and 114 r/w. S. 34 I.P.C. 3. The petitioners have approached this Court under S. 482 Cr.P.C. for quashing the proceedings in C.C. No. 1232/2015 on the files of the court below. 4. The service on the first respondent is complete. However, there is no appearance for the first respondent. 5. Heard the learned counsel for the petitioners and the learned Public Prosecutor. 6. The learned counsel for the petitioners has submitted that since there was divorce of the first respondent by the first petitioner by pronouncing talaq before the marriage between the first petitioner and the second petitioner, the present offences alleged against the petitioners cannot be sustained. The learned counsel for the petitioners has canvassed Annexure A5 judgment to the notice of this Court to support his argument in Annexure A5, the court observed that the first petitioner had divorced the first respondent herein by pronouncing talaq on 31.03.2008. Ext. A5 judgment is a Common judgment passed by the Family Court, Attingal in three Original Petitions, wherein the first petitioner and the first respondent herein were parties. There is no mention about the date of marriage between the first and the second petitioners either in Annexure-A1 complaint or in the sworn Statement of the complainant or her witness. 7. The parties are Muslims. There is no mention about the date of marriage between the first and the second petitioners either in Annexure-A1 complaint or in the sworn Statement of the complainant or her witness. 7. The parties are Muslims. S. 494 I.P.C. provides that whoever, having a husband or wife living, marries in any case in which such marriage is void by reason of its taking place during the life of such husband or wife, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine. The necessary ingredients of the Section are: (1) having a husband or wife living; (2) marries in any case; (3) in which such marriage is void; and (4) by reason of its taking place during the life time of such husband or wife. A marriage which is in violation of any provisions of law would be void in terms of the expression used under S. 494 I.P.C. 8. The Apex Court in Dr. Surajmani Stella Kujur v. Durga Charan Hansdah & Anr. (2001 KHC 1043 : AIR 2001 SC 938 ) held that the fact of the second marriage being void is sine qua non for the applicability of S. 494 I.P.C. The Muslim male can have four wives at a time. However, if the Muslim male marries a fifth wife, he can very well be prosecuted under S. 494 I.P.C. since the fifth marriage is void as the present law permits only four wives to be taken together. One of the most important ingredients to attract the offence under S. 494 I.P.C. is that the second marriage should be void. So far as Muslim males are concerned, since they can have four wives living at a time, the second marriage is not void. Since the second marriage is not void, the offence under S. 494 I.P.C. is not attracted, even if the Muslim male marries a second woman. In this case, there is no allegation that the first petitioner had married more than once before the marriage with the second petitioner. Therefore, no offence under S. 494 I.P.C. is attracted in this case. Consequently, the abetment of the said offence is also not attracted. In this case, there is no allegation that the first petitioner had married more than once before the marriage with the second petitioner. Therefore, no offence under S. 494 I.P.C. is attracted in this case. Consequently, the abetment of the said offence is also not attracted. For the said reason, there cannot be any successful prosecution against the petitioners for the above said offences and consequently, no purpose will be served even if the prosecution against the petitioners is permitted to be continued. For the said reason, I am inclined to quash Annexure-A1 complaint and further proceedings against the petitioners in C.C. No. 1232/2015 on the files of the court below, in exercise of the inherent power under S. 482 Cr.P.C., to meet the ends of justice and accordingly, I order so. In the result, this Crl. M.C. stands allowed.