Criminal Writ Petition No.142 of 2004

4th September, 2006

Petitioner Counsel: Mr. ANIL S. MARDIKAR
Respondent Counsel: None

Cases Cited:
Smt. Lila Gupta Vs. Laxmi Narain, AIR 1978 SC 1351 [Para 8]
Kailash Singh Parihar Vs. Priti Parihar, 1982 Cri.L.J. 1005 (Rajasthan) [Para 8]
Sankaran Sukumaran Vs. Krishnan Saraswathy, 1984 Cri.L.J. 317 (Kerala) [Para 8]
Krishna Gopal Divedi Vs. Prabha Divedi, 2002 ALL MR (Cri) 912 (S.C.)=AIR 2002 SC 389 [Para 8]
Tejinder Kaur Vs. Gurmit Singh, AIR 1988 SC 839 [Para 10]

JUDGMENT

JUDGMENT :- By this petition under Article 227 of the Constitution of India r/w Sec.482 of the Code of Criminal Procedure the petitioners seek to quash and set aside the order dated 10/2/2004 passed by 2nd Additional Sessions Judge, Amravati in Criminal Revision No.120/2003 confirming the order dated 25/8/2003 by Judicial Magistrate, First Class, Warud in Criminal Case No.170/2003.

2. In order to understand the controversy it would be necessary to see the background of the case. The marriage between petitioner no.1 and respondents no.1 was solemnized on 19/6/1998. After marriage petitioner no.1 got herself transferred to the place of respondent no.1 and went to cohabit with him. However, after sometime she left her matrimonial house and went to her parental house. On 26/6/2001 she filed Divorce Petition No.18/2001 against respondent no.1 before Civil Judge, Senior Division, Amravati. The said divorce petition was decreed by the Joint Civil Judge, Senior Division, Amravati on 21/12/2002. On 16/1/2003 respondent no.1 preferred Regular Civil Appeal No.28/2003 against the said judgment and decree before the District Judge, Amravati. He also moved an application for stay under Order 41 Rule 5 of the Code of Civil Procedure. Petitioner no.1 appeared in the said appeal and filed her say to the application on 21/2/2003.

3. Thereafter petitioner no.1 married petitioner no,7 on 9/3/2003. In view of the marriage, 2nd Additional District Judge, Amravati disposed of the stay application by order dated 24/3/2003. On 18/7/2003 respondent no.1 lodged a report with the Police Station against the petitioners about second marriage between petitioner no.1 and petitioner no.7. As no action was taken in respect of the report, he filed Complaint Case No.170/2003 against the petitioners before the Judicial Magistrate, First Class, Warud on 2/8/2003. After verification Judicial Magistrate, First Class, Warud by order dated 25/8/2003 directed issuance of process u/s 494 r/w 34 of the Indian Penal Code against the Petitioners.

4. The petitioners preferred Criminal Revision No.120/2003 before the District Judge, Amravati challenging the order of issuance of process against them. By order dated 10/2/2004, 2nd Additional Sessions Judge, Amravati dismissed the revision by modifying issuance of process u/s 494 r/w 109 of the Indian Penal Code. The orders passed by Judicial Magistrate, First Class, Warud and 2nd Additional Sessions Judge, Amravati are under challenge.

5. I have heard Mr. Anil S. Mardikar, Advocate for the petitioners and respondent no.1 in person.

6. The crux of the submission of Mr. Mardikar, the learned counsel for the petitioners, is that the essential ingredient of the offence punishable under Section 394 of the Indian Penal Code is that the alleged remarriage should be void by reason of its taking place during the life of first husband/wife. Unless the alleged remarriage is void the provisions of Section 494 of the Indian Penal Code would not be attracted. Mr. Mardikar submitted that Section 11 of the Hindu Marriage Act, 1955 declares that any marriage solemnized after the commencement of this Act shall be null and void if it contravenes any one of the conditions specified in clauses (i), (iv) and (v) of Section 5. Clause (i) of Section 5 lays down a condition that neither party has a spouse living at the time of the marriage.

7. Mr. Mardikar submitted that the suit for divorce instituted by petitioner no.1 was decreed by the Joint Civil Judge, Senior Division, Amravati by judgment dated 21/12/2002. So from that date the relationship between petitioner no.1 and respondent no.1 as wife and husband came to an end. The alleged marriage between petitioner no.1 and petitioner no.7 was solemnized on 9/3/2003 i.e. after the relationship between petitioner no.1 and respondent no.1 was severed by a decree passed by the competent Court. As such it cannot be said that it is a void marriage. Consequently the provisions of Section 494 of the Indian Penal Code would not be attracted.

8. It was further submitted by Mr. Mardikar that even if it is presumed that during pendency of the appeal against the decree of divorce presented within the period of limitation, petitioner no.1 remarried in contravention of the provisions of Section 15 of the Hindu Marriage Act, 1955, the said marriage would be unlawful and not void. Even on this count, the provisions of Section 494 of the Indian Penal Code would not be attracted and as such process could not have been issued against the petitioners for the offence punishable under section 494 r/w either 34 or 109 of the Indian Penal Code. In support of his submission Mr. Mardikar relied on the following cases :

(i) Smt. Lila Gupta Vs. Laxmi Narain and others, AIR 1978 SC 1351, wherein it is held as under :

"A marriage contracted in contravention of or violation of the proviso to Sec.15 is not void but merely invalid not affecting the core of marriage and the parties are subject to a binding tie of wedlock flowing from the marriage."

(ii) Kailash Singh Parihar and others Vs. Priti Parihar, 1982 Cri.L.J. 1005 (Rajasthan), wherein it is held as under :

"Marriage solemnized in violation of Section 15 of the Hindu Marriage Act is not void and no offence can be said to have been committed u/s 494 of I.P.C. There is no provision in the Act making a marriage solemnized in contravention of Sec.15 of the Act as void."

(iii) Sankaran Sukumaran Vs. Krishnan Saraswathy and another, 1984 Cri.L.J. 317 (Kerala), wherein it is held as under :

"Mens rea, that is, guilty knowledge is a necessary ingredient of the offence u/s 494 of I.P.C. Where the accused, when he contracts the second marriage acts on the bona fide belief that his marital tie with the previous spouse has been severed under the deed of divorce entered into between the parties, he is entitled to be acquitted of the charge under Section 494, I.P.C."

(iv) Krishna Gopal Divedi Vs. Prabha Divedi, AIR 2002 SC 389 : [2002 ALL MR (Cri) 912 (S.C.)], wherein it is held as under :

"Husband undergoing second marriage after obtaining ex-parte divorce decree against first wife cannot possibly be convicted under Section 494 of I.P.C. even though ex-parte divorce decree is later set aside. Criminal Proceedings against husband quashed being only an exercise in futility".

9. Respondent no.1, on the other hand, invited my attention to Section 17 of the Hindu Marriage Act, 1955 which is to the effect that any marriage between two Hindus solemnized after the commencement of this Act is void if at the date of such marriage either party had a husband or wife living; and the provisions of sections 494 and 495 of the Indian Penal Code shall apply accordingly. Respondent no.1 submitted that a successful party obtaining a decree of divorce cannot remarry even after the judgment. Right to remarry does not automatically enure after expiry of 30 days from date of decree of divorce. One has to wait until the period of filing of the appeal is expired or in case appeal is filed till the same is dismissed.

10. Respondent No.1 further submitted that Section 15 of the Hindu Marriage Act, 1955 provides for a period prohibiting remarriage. Hence a party will be deemed to have a spouse living during the prohibited period. The decree of divorce passed by the trial court is not final and absolute and it does not terminate the status of the parties as married persons. It has to be confirmed by the appellate court. No party can remarry during the pendency of appeal and the marital status of the parties remains unchanged. The previous marriage subsists until the decree of divorce is confirmed and is made absolute in appeal. Only the final and absolute decree for divorce terminates the status of the parties as married persons. According to respondent no.1 the combined effect of Section 15 and 17 of the Hindu Marriage Act is that when a spouse performs a second marriage during pendency of the appeal against the decree of divorce, the second marriage is punishable under Section 494 of the Indian Penal Code. In support of this submission, respondent no.1 relied on Tejinder Kaur Vs. Gurmit Singh, AIR 1988 SC 839, in which it is held as under :

"Under the Hindu Marriage Act (1955) monogamy is the rule and a party can only contract a valid second marriage after the first marriage ceases to exist in the manner envisaged by Section 15. The rule laid down in this section is an integral part of the proceedings by which alone both the parties to the decree of divorce can be released from their incapacity to contract a fresh marriage. Parliament by the Marriage Laws (Amendment) Act, 1976 has done away with the period of waiting by deleting the proviso to Section 15. The deletion of the proviso has given rise to a question of great difficulty. The section when it speaks of a case where there is a 'right of appeal' does not in terms cover a case of an application for special leave to appeal to the Supreme Court Art. 136 of the Constitution. Though Section 15 in terms does not apply to a case of special leave to appeal to the Supreme Court, a spouse who has won in the High Court and got a decree of dissolution of marriage cannot by marrying immediately after the High Court's judgment take away the right of presenting an application for special leave to appeal from the other spouse. The successful party must wait for a reasonable time and make sure whether an application for special leave has been filed in the Supreme Court. Thus where a decree for dissolution is passed and appeal against it dismissed by High Court and the husband remarries after one month of the High Court's order, he cannot be allowed to raise the plea that since he has remarried the special leave petition filed by the wife becomes infructuous. It was incumbent on him to have apprised himself as to whether the appeal in the High Court was still pending, and if not, whether the period for filing a special leave petition to the Supreme Court had expired."

11. I have carefully considered the rival submissions. I have also gone through the relevant provisions of law as well as the relevant case law. A decree of divorce, as a general rule, operates from the moment it is pronounced. Subject to the limitation relating to remarriage by either spouse as laid down in Section 15 of the Hindu Marriage Act, 1955, the effect of a decree of divorce is to dissolve the marriage for all intents and purposes from the date of its pronouncement. Admittedly the divorce petition was decreed in favour of petitioner no.1 by the trial Court on 21/12.2002; respondent no.1 preferred appeal against the said judgment and decree on 16/1/2003; respondent no.1 moved an application for stay under Order 41 Rule 5 of the Code of Civil Procedure along with appeal; petitioner no.1 appeared in the appeal and filed her say on 21/2/2003. She however remarried on 9/3/2003 and hence by order dated 24/3/2003 the stay application moved by respondent no.1 was disposed of. In the appeal preferred by respondent no.1 against the decree of divorce, though no ex-parte stay was granted to the decree, petitioner no.1 had appeared in the appeal and she was fully aware of the pendency of the appeal as well as the application for stay. Hence it was obligatory on her part to wait till the order on stay application as well as till the decision of the appeal; instead petitioner no.1 remarried on 9/3/2003 and tried to get advantage of her own wrong by submitting before the appellate court that the application for stay had become infructuous because of the remarriage. In view of Tejinder Kaur's case the said decree had not become final and as such she was not free to remarry till the decision of the appeal. In this situation the relationship between petitioner no.1 and respondent no.1 is deemed to have been continued as husband and wife. As such she could not have remarried during the pendency of the appeal. In view of this position it cannot be said that the marriage between petitioner no.1 and petitioner no.7 is merely unlawful and not void. The marriage between petitioner no.1 and petitioner no.7 is void and as such the provisions of Section 494 of the Indian Penal Code would be attracted. Thus the learned trial Magistrate was justified in issuing process against the petitioners.

12. Smt. Lila Gupta's case, in fact, supports the contention of respondent no.1 though it speaks that the marriage contracted in contravention of or violation of the proviso to Section 15 is not void but merely invalid in as much as it does not affect the core of marriage.

13. In Kailash Singh Parihar's case, though it has been observed that there is no provision in the Act making a marriage solemnized in contravention of Section 15 of the Act as void, the Rajasthan High Court has not considered the aspect that a marriage can be deemed to be void.

14. In Krishna Gopal Divedi's case, the Supreme Court simply expressed that the husband undergoing second marriage after obtaining ex-parte divorce decree against first wife cannot possibly be convicted under Section 494 of the Indian Penal Code. So, the Supreme Court has not expressed definite opinion as to whether or not an offender can be convicted under 494 of the Indian Penal Code. Hence the case law relied upon by Mr. Mardikar will not come to the rescue of the petitioners.

15. It was further submitted by Mr. Mardikar that the alleged remarriage between petitioner no.1 and petitioner no.7 took place at Akot, District - Akola whereas respondent no.1 has filed the complaint before the Judicial Magistrate, First Class, Warud, District - Amravati. The cause of action, if any, arose at Akot, District - Akola and hence the Judicial Magistrate, First Class, Warud, District - Amravati will have no jurisdiction to entertain the complaint. The complaint is liable to be quashed on this ground.

16. Sub-section (2) of Section 182 of the Code of Criminal Procedure is a complete answer to the objection raised by Mr. Mardikar. Sub-section (2) Section 182 of the Code of Criminal Procedure provides that any offence punishable under Section 495 or section 494 of the Indian Penal Code may be inquired into or tried by a Court within whose local jurisdiction the offence was committed or the offender last resided with his or her spouse by the first marriage.

17. In the present case the complainant has averred that petitioner no.1 deserted him when they were residing at Warud. In view of this averment under the provisions of Section 182(2) of the Code of Criminal Procedure, Judicial Magistrate, First Class, Warud will have jurisdiction to try the offence.

18. In the result I find no merit in the petition.

19. The petition is, therefore, dismissed with costs of Rs.5,000/- (Rs. Five Thousand only) payable by the petitioners to Respondent No.1. The record and proceedings of Criminal Case No.170/2003 be sent back forthwith to the Judicial Magistrate, First Class, Warud, District - Amravati for disposal according to law.

20. Needless to say that the interim stay granted to the further proceedings stands vacated. The request for continuation of stay for 15 days is rejected.

Petition dismissed.