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2018 DIGILAW 802 (ALL)

ANJU v. NARENDRA KUMAR

2018-04-04

UMESH CHANDRA TRIPATHI

body2018
JUDGMENT : Umesh Chandra Tripathi, J. 1. Heard learned counsel for the appellant and Shri L.D. Rajbhar, learned A.G.A., for the State. 2. This appeal is directed against the judgment and order dated 30.9.2003 passed by learned Special Judicial Magistrate, Ghaziabad in Compliant Case No. 3951 of 2002 (Smt. Anju Vs. Narendra Kumar and others) whereby the respondent No. 1 (Narendra Kumar) was acquitted for the offence punishable under Section 494 Indian Penal Code (In short 'IPC'). Similarly the respondent No. 2 (Jagdish Prasad), respondent No. 3 (Smt. Indra), respondent No. 4 (Smt. Sheetal) and respondent No. 5 (Smt. Kusum) were also acquitted for the offence punishable under Section 494 IPC read with Section 109 IPC. 3. Brief facts of the prosecution case are that complainant Smt. Anju was married with the respondent Narendra Kumar on 12.5.1994. From their wedlock, a daughter namely Himanshi was born on 30.10.1995. Respondent Narendra Kumar married again with respondent-Smt. Sheetal on 11.7.1999 during life time of complainant Smt. Anju with aid of other respondents Smt. Kusum, Smt. Indra and Sri Jagdish Prasad. Smt. Kusum is mother of Smt. Sheetal and Jagdish Prasad is father and Smt. Indra is mother of Narendra Kumar. This marriage was solemnized at about 11:30 PM at village Bahsuma, P.S.Khass, District Meerut at residence of Smt. Kusum, Sheetal according to Hindu rituals performing Saptadi in presence of witnesses Khacheru, Raju, Vikram Singh and Puran Singh. 4. From prosecution side, PW-1 complainant (Smt. Anju), PW-2 Vikram Singh and PW-3 Puran Singh were examined. After closure of the prosecution evidence, statement under Section 313 Code of Criminal Procedure (In short 'Cr.P.C.'), of the accused were recorded wherein they have stated that have been falsely implicated and denied the marriage of respondent Narendra Kumar with Smt. Sheetal. 5. No evidence, whatsoever was adduced in defence. 6. Learned Trial Court has acquitted the respondents on the ground that complainant has failed to prove the marriage of respondent (Narendra Kumar) with Smt. Sheetal beyond reasonable doubts. 7. Learned counsel for the appellant contended that on the basis of minor contradiction in the statement of witnesses of fact, learned Trial Court has passed the impugned order without properly appreciating the evidence on record. 7. Learned counsel for the appellant contended that on the basis of minor contradiction in the statement of witnesses of fact, learned Trial Court has passed the impugned order without properly appreciating the evidence on record. In appeal, he has filed the voter list of Municipal Corporation of the year 2006 and further contended that respondent Narendra Kumar and Smt. Sheetal are shown as husband and wife in voter list. As per voter list, it is proved beyond reasonable doubt that respondent Narendra Kumar married with Smt. Sheetal. 8. Learned counsel for the respondents contended that impugned judgment was passed on 30.9.2003 and voter list is of the year 2006. On the basis of that voter list, it cannot be inferred that respondent Narendra Kumar married with Smt. Sheetal on 11.7.1999. He further contended that prosecution could not prove marriage of Narendra Prasad and Smt. Sheetal and as such, appeal is liable to be dismissed. 9. In the case of Bhaurao Shankar Lokhande Vs. State of Maharashtra, AIR 1965 SC 1564 , the Hon'ble Apex Court held as follows:- "............................If the marriage is not a valid one, according to the law applicable to the parties, no question of its being void by reason of its taking place during the life of the husband or wife of the person marrying arises. If the marriage is not a valid marriage, it is no marriage in the eye of law. The bare fact of a man and a woman living as husband and wife does not, at any rate, normally give them the status of husband and wife even though they may hold themselves out before society as husband and wife and the society treats them as husband and wife. 4. Apart from these considerations, there is nothing in the Hindu law, as applicable to marriages till the enactment of the Hindu Marriage Act of 1955, which made a second marriage of a male Hindu, during the life-time of his previous wife, void. Section 5 of the Hindu Marriage Act provides that a marriage may be solemnized between any two Hindus if the conditions mentioned in that section are fulfilled and one of those conditions is that neither party has a spouse living at the time of the marriage. Section 5 of the Hindu Marriage Act provides that a marriage may be solemnized between any two Hindus if the conditions mentioned in that section are fulfilled and one of those conditions is that neither party has a spouse living at the time of the marriage. Section 17 provides that any marriage between two Hindus solemnized after the commencement of the Act is void if at the date of such marriage either party had a husband or wife living, and that the provisions of ss. 494 and 495 I.P.C. shall apply accordingly. The marriage between two Hindus is void in view of s. 17 if two conditions are satisfied : (i) the marriage is solemnized after the commencement of the Act; (ii) at the date of such marriage, either party had a spouse living. If the marriage which took place between the appellant and Kamlabai in February 1962 cannot be said to be 'solemnized', that marriage will not be void by virtue of s. 17 of the Act and s. 494 I.P.C. will not apply to such parties to the marriage as had a spouse living. L4Sup./65-7 The word 'solemnize' means, in connection with a marriage, 'to celebrate the marriage with proper ceremonies and in due form', according to the Shorter Oxford Dictionary. It follows, therefore, that unless the marriage is 'celebrated or performed with proper ceremonies and due form' it cannot be said to be 'solemnized'. It is therefore essential, for the purpose of s. 17 of the Act, that the marriage to which s. 494 I.P.C. applies on account of the provisions of the Act, should have been celebrated with proper ceremonies and in due form. Merely going through certain ceremonies with the intention that the parties be taken to be married, will not make them ceremonies Prescribed by law or approved by any established custom. 5. We are of opinion that unless the marriage which took place between appellant no. 1 and Kamlabai in February 1962 was performed in accordance with the requirements of the law applicable to a marriage between the parties, the marriage cannot be said to have been 'solemnized' and therefore appellant no. 1 cannot be held to have committed the offence under s. 494 I.P.C." 10. In the present case, complainant PW-1 Smt. Anju is not witness of marriage of Narendra and Smt. Sheetal. 1 cannot be held to have committed the offence under s. 494 I.P.C." 10. In the present case, complainant PW-1 Smt. Anju is not witness of marriage of Narendra and Smt. Sheetal. She admitted in his cross-examination that she has not attended marriage ceremony of respondent Narendra with Smt. Sheetal. PW-2 Vikram Singh and PW-3 Puran Singh are witness of marriage ceremony of Narendra Kumar with Smt. Sheetal. PW-2 Vikram Singh, in his examination in chief stated that at the time of marriage ceremony of respondent Narendra Kumar and Smt. Sheetal, he came to know about first marriage of Narendra Kumar. But in his cross-examination contrary to this, he stated that he came to know about first marriage of respondent Narendra Kumar before 2 ½ years of his second marriage. He further stated that he had no formal relation with Jagdish Prasad, father of Narendra Kumar. He opens his shop at 7:00 AM and closes at 10:00 PM. He was not informed to attend the marriage ceremony of Sri Narendra Kumar by his father before the date of marriage. Suddenly, on the date of marriage i.e. on 11.7.1999 Jagdish Prasad met him at 7:30 PM and asked him to go with him to attend marriage. At that time, Jagdish Prasad did not inform Vikram Singh to go into marriage of his son Narendra Kumar. He immediately sat in car with Jagdish Prasad and went to marriage party without knowing the person in whose marriage party he was going. This statement of Vikram Singh is not only self contradictory but unnatural also. This shows that Vikram Singh is most unreliable witness. 11. PW-3 Puran Singh has admitted this fact that his son is married with daughter of Jagarnath, Jagarnath is elder brother of Late Bablu Singh father of respondent Smt. Sheetal. Jagarnath resides in ground floor of house and Smt. Sheetal and her mother reside in upper floor of the same house. Jagarnath was not in talking term with family of Smt. Sheetal. He further stated that he had been invited by Jagarnath to attend the marriage. This statement is also not natural, a person will not invite his relatives to attend marriage party of a person to whom he has no talking terms. He further admitted that he had worked in a dairy with Sri Jai Bhagwan, father of complainant Smt. Anju. This shows that he is interested witness. This statement is also not natural, a person will not invite his relatives to attend marriage party of a person to whom he has no talking terms. He further admitted that he had worked in a dairy with Sri Jai Bhagwan, father of complainant Smt. Anju. This shows that he is interested witness. He further stated that marriage ceremony was performed in upper floor of house. At that time, he was sitting with Jagarnath at ground floor. From perusal of statement of Puran Singh, it is evident that that he is neither the reliable witness nor the eye witness of marriage ceremony of Narendra Kumar with Smt. Sheetal. 12. Although voter list produced by the appellant is pertaining to year 2006 in which Smt. Sheetal has been shown to be wife of Narendra Kumar. On the basis of voter list of the year 2006, it cannot be presumed that respondent Narendra Kumar and Smt. Sheetal were husband and wife in the year 1999 or their marriage was solemnized on 11.7.1999. Even if, Narendra Kumar and Smt. Sheetal be shown as husband and wife in voter list of the year 1999 or they resides as husband and wife, they cannot be punished for offence under Section 494 IPC, unless it is proved that their marriage was performed with proper ceremonies and due form as law propounded by Apex Court in Bhaurao Shankar Lokhande (supra). In this case, complainant has failed to prove the marriage ceremonies of Narendra Kumar with Smt. Sheetal. 13. In view of this, I find no infirmity or illegality in the well reasoned judgment and order of acquittal passed by learned Trial Court. 14. Consequently, this criminal appeal is dismissed. 15. Office is directed to send a certified copy of this order to Sessions Judge, Ghaziabad for its compliance. Office is further directed to send back the lower court record.