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2020 DIGILAW 180 (KAR)

D. Radhamma v. Gowramma

2020-01-21

B.A.PATIL

body2020
ORDER : The present petition has been filed by the petitioners/accused No.2 to 6 and 9 to 12 under Section 482 of Cr.P.C., praying this Court to set aside the order dated 20.09.2017 of taking the cognizance against the petitioners/accused. 2. I have heard the learned counsel for the petitioners/accused and learned counsel for the respondent/complainant. 3. The brief facts of the case are that a private complaint has been registered by the respondent/complainant contending that the accused got married with accused No.2 while marriage with the complainant is still subsisting and other accused persons were also present at the time of registration of marriage of accused Nos.1 and 2. For having taken the cognizance by the Court below, the petitioners are before this Court. 4. The main grounds urged by the learned counsel for the petitioners are that the order of taking cognizance by the Court below is contrary to law, facts and evidence placed on record and as such, the same is liable to be set aside. The reasons assigned by the learned Magistrate while passing the impugned order is erroneous. Though, there is no material as against the petitioners/accused and without considering the ingredients of Section 494 of IPC, the Court below has taken the cognizance. It is his further submission that taking cognizance itself is nothing but abuse of process of law. On these grounds, he prayed to allow the petition and to set aside the impugned order. 5. Per contra, the learned counsel for the respondent/complainant vehemently argued and submitted that the materials produced clearly go to show that the complainant is the legally wedded wife of accused No.1 and their marriage was solemnized on 18.02.2011. Out of their wedlock, she begotten two children and thereafter, accused No.1 got married accused No.2 by registered marriage. Accused Nos.3 to 6 are parents and brothers of accused No.2 and other accused persons were the relatives who were also present at the time of marriage of accused Nos.1 and 2. It is his further submission that though the accused persons were having knowledge that the complainant is the legally wedded wife of accused No.1, at the instance and instigation of all other accused persons the second marriage has been performed. There is ample material as against the accused persons. It is his further submission that though the accused persons were having knowledge that the complainant is the legally wedded wife of accused No.1, at the instance and instigation of all other accused persons the second marriage has been performed. There is ample material as against the accused persons. The sworn statements of the accused persons have been recorded and the trial Court has taken the cognizance of the offence. On these grounds, he prayed to dismiss the petition. 6. I have carefully and cautiously gone through the submissions made by the learned counsel appearing for the parties and perused the records. For the purpose of brevity, I quote Section 494 of IPC: “494.Marryingagainduringlifetimeofhusbandorwife–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 year, and shall also be liable to fine. Exception – This section does not extend to any person whose marriage with such husband or wife has been declared void by a Court of competent jurisdiction, nor to any person who contracts a marriage during the life of a former husband or wife, if such husband or wife, at the time of the subsequent marriage, shall have been continually absent from such person for the space of seven years, and shall not have been heard of by such person as being alive within that time provided the person contracting such subsequent marriage shall, before such marriage takes place, inform the person with whom such marriage is contracted of the real state of facts so far as the same are within his or her knowledge.” On close reading of the said Section, the husband or wife who got married during the subsistence of marriage constitutes as an offence but in order to make other persons liable, there must be some abetment or instigation to the second marriage. Mere consent of the persons present at the place of the alleged incident will not attract the Proviso of Section 494 of IPC and it does not necessary to constitute the abatement of such marriage. Mere consent of the persons present at the place of the alleged incident will not attract the Proviso of Section 494 of IPC and it does not necessary to constitute the abatement of such marriage. On close reading of the contents of complaint and other material, it clearly goes to show that except stating vaguely and behind her back at the instance and instigation of all the accused persons, no other specific allegations have been made as against the petitioners/accused and even though, it is contended by the learned counsel for the respondent/complainant that the accused persons have abused the complainant with filthy language, the trial Court has not taken the cognizance for the alleged offence. Under such facts and circumstances, I am of the considered opinion that the trial Court without application of mind and without looking into the provisions of law has erroneously taken the cognizance and the said order is capricious and it is not sustainable in law. 7. In that light, the petition is allowed and the order passed by the Court of Civil Judge and J.M.F.C., Jagaluru in C.C.No.630/2017 dated 20.09.2017 taking cognizance as against the petitioners/accused No.2 to 6 and 9 to 12 is set aside.