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2023 DIGILAW 181 (UTT)

Sunil Naudiyal v. State of Uttarakhand

2023-02-14

SHARAD KUMAR SHARMA

body2023
JUDGMENT : SHARAD KUMAR SHARMA, J. The present C-482 application has been preferred by the alleged husband of respondent no.2-complainant. The complainant herein is said to have registered a first information report, being F.I.R. No. 237 of 2016, for the alleged involvement of the present applicant herein, in commission of offences under Sections 498-A, 323, 313, 494 & 504 of I.P.C. 2. The matter was thereafter investigated upon, and the Investigating Officer had ultimately submitted a Charge Sheet, being Charge Sheet No. 53 of 2017 dated 21.03.2017, on which the court of learned Chief Judicial Magistrate, Dehradun has registered a Criminal Case No. 1400 of 2017 “State Vs. Sunil Naudiyal”, and consequentially had issued a summoning order dated 10.04.2017. 3. In the instant C-482 application, the challenge as it has been given is to the summoning order, whereby the present applicant-alleged husband has been summoned to be tried for the offences under Sections 376, 420, 120-B, 313, 504, 323 & 493 of I.P.C.. In these eventuality, this particular C-482 application has to be independently dealt with. 4. Because so far as the other connected C- 482 applications are concerned, where the summons have been issued, those have been issued exclusively, while taking cognizance for the offences under Sections 420, 120-B & 504 of I.P.C., which has to be dealt with separately. 5. The reference in the relief clause has made by the applicant that the learned court has been taken cognizance against the applicant under Sections 376, 420, 120-B, 313, 504, 323 & 493 of I.P.C. 6. The arguments of the learned counsel for the applicant, is from the following prospective: (i) The issue would be with regard to the jurisdiction of the court’s taking cognizance of the matter, in pursuance to the F.I.R., which was got registered by the complainant-respondent no.2, whether the same would at all have jurisdiction or not? The arguments of the learned counsel for the applicant, is from the following prospective: (i) The issue would be with regard to the jurisdiction of the court’s taking cognizance of the matter, in pursuance to the F.I.R., which was got registered by the complainant-respondent no.2, whether the same would at all have jurisdiction or not? (ii) Secondly as to whether, at all, be an offence under Section 376 of I.P.C. could be made out qua the respondent no.2, as against the present applicant, particularly when, there was a second marriage, which was solemnized by the present applicant during the subsistence of the first marriage, as admittedly the proceedings at the behest of them under Section 13-B of Hindu Marriage Act, was at the stage of second motion, and was yet to be finalized, which has not been finalized even till date, thus, the marriage with respondent no.2, was void or a voidable marriage. (iii) He submitted that the act of “bigamy”, if at all it is there, it would be qua the first wife, against whom the proceedings under Section 13-B of Hindu Marriage Act, was going on, and it will not be qua the respondent no.2, the second wife, with whom the marriage was solemnized during the pendency of the proceedings of Section 13-B of Hindu Marriage Act. 7. The facts which are admitted are, and which would be vital too for the purposes of thepresent case is that, the proceedings under Section 13-B of Hindu Marriage Act, had reached upto to stage of the second motion on 27.11.2014, and before its final culmination, the second marriage with respondent no.2, was admittedly solemnized by the present applicant, which is a fact not denied. In these given set of circumstances, since the first marriage of the applicant was since still legally subsisting in the eyes of law, and even after having the knowledge of the pendency of the proceedings under Section 13-B of Hindu Marriage Act, if the applicant had voluntarily solemnized the second marriage with respondent no.2, it would be a void marriage, right from its inception. Though for the applicant it would be an admitted relationship established by him, by second marriage. 8. There is a distinction between a ‘void’ or a ‘voidable marriage’. Though for the applicant it would be an admitted relationship established by him, by second marriage. 8. There is a distinction between a ‘void’ or a ‘voidable marriage’. The factum of a voidable marriage is required to be established after securitization of a given set of facts, evidence and circumstances, but if a marriage is solemnized during the subsistence of the first marriage, it would be “void” right from its inception because it’s a voluntary admitted act. In that eventuality, its subsequent declaration, will only attach a judicial affirmation to the fact marriage, to be void, but the fact would be that the second marriage would be legally void right from its birth. The proceedings under Section 13-B of Hindu Marriage Act, are being carried before the court of learned Family Court, Dehradun, and which is yet to be attained finality. 9. During the intervening period, a proceedings under Section 11 of the Hindu Marriage Act, too was initiated on 04.08.2016, for declaration of marriage of the applicant with respondent no.2, as to be void by invoking the provisions contained under Section 11 of the Hindu Marriage Act, which was ultimately adjudicated upon by the judgment dated 20.07.2019. 10. This Court is of the view, that the subsequent declaration of a marriage, with respondent no.2, by a judicial dictum on 20.07.2019, will in itself not make the marriage void w.e.f. from the date of the judgment, but rather the marriage would still continue to be void, from the date, when it was solemnized by the applicant, knowing the factum of subsistence of the earlier marriage. Subsequent declaration under Section 11 of the Hindu Marriage Act, has only provided it with a legal stamp. In that eventuality, when the marriage with respondent no.2 was void ab initio, she cannot under the eyes of law be treated as to be a “legally wedded wife”. Subsequent declaration under Section 11 of the Hindu Marriage Act, has only provided it with a legal stamp. In that eventuality, when the marriage with respondent no.2 was void ab initio, she cannot under the eyes of law be treated as to be a “legally wedded wife”. The reference to the interpretation of the term “wife” is being specifically observed by this Court in order to deal with, the arguments, which has been extended by the learned counsel for the applicant in the context of provisions contained under Section 198of Cr.P.C., particularly read inconsonance to its proviso (c), which is extracted hereunder: “(c) where the person aggrieved by an offence punishable under [section 494 or section 495] of the Indian Penal Code (45 of 1860 ) is the wife, complaint may be made on her behalf by her father, mother, brother, sister, son or daughter or by her father's or mother's brother or sister [, or, with the leave of the Court, by any other person related to her by blood, marriage or adoption”. 11. The immunity granted under Section 198 of Cr.P.C., for prosecution for the offences against the marriage, particularly, it relates to the offences, which are punishable under Chapter 20 of the I.P.C., it would be only against a “person aggrieved” by an offences punishable under Section 494 & 495 of I.P.C. and that would be the wife. The implication of the proviso to Section 198 of Cr.P.C., from where the applicant tries to derive the benefit, about an immunity to prosecution in the light of the provisions contained under Chapter 20 of I.P.C., on the basis of the complaint registered by the respondent no.2, by extracting, a part of the provisions to the proviso i.e. is “the wife”, will have no affect on the proceedings, which were initiated on the basis of the F.I.R., which was registered by respondent no.2, because as per the opinion of this Court, a “wife” would be only a wife, which according to the customary law, or the law as prevalent under the Hindu Marriage Act, is a legally wedded wife. Since admittedly the status of the respondent no.2, on the date of registration of the said F.I.R., which was inclusive of an offence under Section 493 of I.P.C., she did not legally enjoyed, the status of being a legally wedded wife, hence, the embargo of prosecution as provided under Section 198 of I.P.C., under its proviso (c), would not be applicable, as against the respondent no.2, to restrict her to register an F.I.R. against the present applicant. Hence, the arguments extended by the learned counsel for the applicant in the context of proviso (c) to Section 198 of Cr.P.C., is answered against him. 12. A very interesting issue, which has been attempted to be argued by the applicant’s counsel, is in relation to the F.I.R., which was registered by the complainant-respondent no.2, which relates to the offences primarily concentrated upon an act, as falling under the domain of the offence under Section 320, 323 & 376 of I.P.C., the specific emphasis has been given on these aforesaid provisions, for which, the F.I.R. has been registered, is from the prospective as to, which court will have a jurisdiction to deal with these aspects. Admittedly, the marriage was solemnized in Delhi, and thereafter all judicial proceedings i.e. under Section 13-B & under Section 11 of Hindu Marriage Act, were carried it was admittedly and apparently in District Dehradun. 13. Be that as it may, for establishing an act of commission of offences under Sections 313, 323 & 376 of I.P.C., for the purposes of its jurisdiction, it could only be established by an appreciation of evidence, which has to be led by the parties before the learned trial court. The aspect for determining the jurisdiction for these offences, levelled in the F.I.R., by venturing into the actual date of commission of offences under Sections 376, 313 & 533 of I.P.C., which are part of the complaint, which was registered by the respondent no.2, since, it is a fact, which is required to be established by appreciation of evidence. Hence, the C-482 application cannot be resorted to, to be ventured into to appreciate an evidence in order to decide the jurisdiction, particularly when there is a strong possibility of commission of these offences at different places, which relates to the physical relations between the male and female, which could be at any place. 14. Hence, the C-482 application cannot be resorted to, to be ventured into to appreciate an evidence in order to decide the jurisdiction, particularly when there is a strong possibility of commission of these offences at different places, which relates to the physical relations between the male and female, which could be at any place. 14. An attempt has been made by the learned senior counsel, that if the respondent no.2 claims herself to be married with the applicant, and if she claims that she enjoyed the relationship of being a husband and wife, the Section 376 of I.P.C., could not be made out against the applicant. 15. This arguments extended by learned senior counsel, is not acceptable by this Court, because, under law there is no such restriction, which has been imposed, that offence under Section 376 of I.P.C., cannot be made out, in a relationship, where two opposite sex enjoys the relationship of being husband and wife. Even during a subsistence of relationship of being an husband and wife, still there could be a commission of offence under Section 376 of I.P.C., in the absence of there being a consent. But this case is based upon under altogether a different pedestal, as it is not in dispute by either of the parties, and as already discussed above, that the marriage of the present applicant with respondent no.2, was void from its inception, and once it is admittedly a void marriage from its inception, the respondent no.2, cannot be socially reckoned, as to be a legally wedded wife, and hence entering into a sexual relationship with a female, whose marriage is ultimately void in the eyes of law from its inception, the commission of offence under Section 376 of I.P.C., also cannot be ruled out. 16. An attempt has been made by the learned senior counsel to carved out an exception, that still the offence under Section 376 of I.P.C., cannot be said to have been made out against the respondent no.2, even if, her status is treated as to be not to be a legally wedded wife, since the marriage being void from its inception, and because the respondent no.2 has not come up with the case, that the establishment of physical relationship at various places was without her consent. It has been further elaborated to be argued, that since the applicant and respondent no.2 were major, and since they had married with one another during the pendency of the proceedings under Section 13-B of Hindu Marriage Act, if there is any establishment of physical relationship between them, will not be an offence under Section 376 of I.P.C., because it would be deemed, that there would be a tacit consent between them, hence, it would not be offence under Section 376 of I.P.C., in the light of the definition given under Section 375 of I.P.C.. 17. This prospective of argument though it may be sustainable, that whether as to there could be an offence under Section 376 of I.P.C. qua the “wife” who is not enjoying the status of being a “legally wedded wife”, but here still the fact remains that whether there was establishment of physical relationship with the consent or not?, which is a fact, which could only be appreciated by giving an opportunity to the parties to lead their evidence at the stage of trial. The scope of C-482 Application cannot be stretched to an extend to enlarge to scrutinize the evidence, and particularly, the sensitive evidence, which cannot be established until and unless a medical examination is conducted by the Doctors, to establish as to whether it was a forceful establishment of physical relationship or not, which could obviously be only subject matter, which could be decided by the trial court, and so would be the offences under Sections 313 & 323 of I.P.C., also which construed as to be the part of the offences, as registered by way of an F.I.R. No. 237 of 2016, which was registered by the respondent no.2.18. This Court feels it to be appropriate to deal with yet another aspect, which was argued by the learned senior counsel with regard to the use of word “bigamy”. What he intends to postulate, that an offence of “bigamy” to bring it within the ambit of Section 494 of I.P.C., would be only in relation to an offence, which has committed against a legally wedded wife, when a person legally and socially solemnizes a marriage with another opposite sex. What he intends to postulate, that an offence of “bigamy” to bring it within the ambit of Section 494 of I.P.C., would be only in relation to an offence, which has committed against a legally wedded wife, when a person legally and socially solemnizes a marriage with another opposite sex. This may not be an appropriate interpretation, which could at all be given to the provisions contained under Sections 494 of I.P.C., and for that purpose, the reference to the provisions contained under Section 494 of I.P.C. becomes relevant to be considered. Section 494 of I.P.C., is extracted hereunder: Section 494 of the Indian Penal Code “494. Marrying again during lifetime of husband or wife.- Whoever, having a husband or wife living, marries in any case in which such marriage is void by reasons of its taking places during the life of such husband or wife, shall be punished with imprisonment of either description of a term which may extend to seven years, 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 nothave been heard of by such person as being alive within that time provided the person contracting such subsequent marriage shall, before such marriage takes places, informs the person with whom such marriage is contracted of the real state of cats so far as the same are within his or her knowledge.” 19. If the derivation of the intention of the legislature from the language used therein is taken into consideration, the commission of offences is not being splitted over, that it could be qua a legally wedded wife only, particularly, when in the instant case, it was claimed by the respondent, that it was the second marriage, and the respondent no.2, enjoyed the status of being a wedded wife. Section 494 of I.P.C., also deals with as to what impact would it held on a void marriage? Section 494 of I.P.C., also deals with as to what impact would it held on a void marriage? The exception, which has been provided under Section 494 of I.P.C., has to be excluded to be addressed by the learned senior counsel for the applicant, which provides that the provisions contained under Section 494 of I.P.C., does not extent to any person, whose marriage, which such husband or wife, has been declared void by a court of competent jurisdiction, which in the instant case, happens to be by way of declaration made by the judgment dated 20.07.2019, in a proceedings which were held under Sections 11 of the Hindu Marriage Act. Hence, in view of the exception contained under Section 494 of I.P.C., the arguments extended by the learned senior counsel, that an act of “bigamy” would not be an offence committed against the second wife, whose marriage has been later on declared to be void, is contrary to the very intention of the provisions contained under Section 494 of I.P.C. Apart from it, since all these factual appreciation is yet to be made by learned trial court, who has taken cognizance on the offences, as registered by the respondent no.2, by way of an F.I.R. 20. This Court feels, that looking to the factual intricacies of the dispute, which could be aptly established by adducing evidence by the parties, the jurisdiction under Section 482 Cr.P.C., is not to be exercised by this Court to determine the validity of a relationship or a commission of an offence under Section 376 of I.P.C. 21. For the aforesaid reasons, I am not inclined to interfere in the C-482 application in the exercise of my inherent jurisdiction. Thus, the C- 482 Application lacks merit, and the same is accordingly dismissed. 22. No order as to costs.