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2019 DIGILAW 262 (MP)

Sayna Bee v. Israr Ahmad

2019-03-27

SUNIL KUMAR AWASTHI

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JUDGMENT : SUNIL KUMAR AWASTHI, J. 1. Applicant has preferred this revision petition under Section 397 read with Section 401 of the Code of Criminal Procedure, 1973 (for short “the Code”) being aggrieved by the order dated 27.10.2016 passed by Additional Sessions Judge, Khachrod, District Ujjain in Cr. R. No. 62/2013, whereby the order dated 30.11.2012 passed by the Judicial Magistrate First Class, Nagda District Ujjain in Criminal Case No. 1293/2012 has been set aside by which the Court has taken cognizance against the respondent for the offence under Section 494 of IPC. 2. Prosecution story in briefly stated, is that the applicant was married to the respondent on 26.12.2002 according to Muslim rituals and customs and one daughter was born from their wed lock on 09.04.2004. However, certain disputes arose between the parties regarding which the allegation of the applicant is that respondent along with his family members was persistently making demand of dowry and they were ill treating the applicant. In the year 2005, the respondent and his family members ousted the applicant and her daughter from the matrimonial house, therefore, she was compelled to reside with her parents. It is alleged that without taking divorce from applicant, the respondent solemnized second marriage with one Hamida Bee which is illegal and void and punishable under Section 494 of IPC. 3. The trial Court recorded the statement of complainant Sayna Bee under Section 200 of “the Code” and witness Mubarak Hussain under Section 202 of “the Code” and on the basis of that the Court took cognizance against the respondent and other accused persons for the offence punishable under Section 494 of IPC. Being aggrieved by the aforesaid order of taking cognizance, the respondent preferred revision petition before the Sessions Court which was allowed and the order passed by the learned Magistrate for taking cognizance against the respondent for the offence punishable under Section 494 of IPC has been set aside. This order is the subject-matter of challenge before this Court. 3.1. Learned counsel for the applicant has submitted that the applicant is the married wife of the respondent and she is living separately with the respondent, however, during her life time without taking divorce from her, the respondent contracted second marriage which is void, therefore, the trial Court has rightly taken cognizance against the respondent for the offence under Section 494 of IPC. However, the revisional Court has wrongly set aside the order passed by the Judicial Magistrate First Class, Nagda, hence counsel prayed that the revision application be allowed and the impugned order passed by the Additional Sessions Judge, Kachrod, District Ujjain be set aside. 4. Learned counsel for the respondent opposes the application by contending that the revisional Court has rightly held that the respondent belongs to the muslim community and as per the muslim law he is having right to marry more than one woman, therefore, no interference is warranted in the order passed by Sessions Judge. 5. Having heard learned counsel for the parties and perused the record. 6. Undisputedly, the applicant is married wife of the respondent and she is living separately from him and the respondent has not taken divorce from the applicant. Section 494 of IPC 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. 7. According to provisions of Section 11 of the Hindu Marriage Act, 1955 (hereinafter referred as “the Act 1955”) any marriage solemnized after the commencement of this Act shall be null and void and may, on a petition presented by either party thereto, against the other party be so declared by a decree of nullity if it contravenes any one of the conditions specified in clauses (i), (iv) and (v) Section 5 of “the Act 1955.” According to Section 5 of “the Act 1955” a marriage may be solemnized between any two Hindus, if neither party has a spouse living at the time of the marriage; thus it is clear that if a Hindu whoever, having a husband or wife living, contracted second marriage during the life of such husband or wife, then such marriage shall be null and void, therefore, under “the Act 1955” bigamy is prohibited. 8. To the contrary, according to Section 255 of Marriage, Maintenance of wives and Restitution of Conjugal Rights of Mahomedan Law, a mahomedan may have as many as four wives at the same time but not more. 8. To the contrary, according to Section 255 of Marriage, Maintenance of wives and Restitution of Conjugal Rights of Mahomedan Law, a mahomedan may have as many as four wives at the same time but not more. If he marries a fifth wife when he has already four wives, the marriage is not void, but merely irregular. Therefore, bigamy is permissible under the Muslim law, hence the provisions of Section 494 of IPC did not attract against the persons belonging to muslim community. The Judicial Magistrate First Class has committed error in taking cognizance against the respondent for the offence under Section 494 of IPC and the revisional Court has rightly interfered with the said order and set aside the same hence no irregularity or illegality is found in the order passed by the Additional Sessions Judge, Khachrod, District Ujjain in Cr. R. No. 62/2013, therefore, no interference is warranted in the said order. 9. Accordingly, the present revision petition is hereby dismissed. 10. Certified copy as per rules.