HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Court No. - 23 Case :- CRIMINAL REVISION DEFECTIVE No. - 59 of 2012 Revisionist :- Smt. Dharmwati Opposite Party :- State Of U.P. And Anr. Counsel for Revisionist :- P.S. Pundir Counsel for Opposite Party :- Govt. Advocate,Ajay Kumar Singh Hon'ble Pramod Kumar Srivastava,J.
1.Heard Sri P.S. Pundir, learned counsel for the revisionist, learned AGA and Sri Prashant Kumar, learned counsel for the opposite party no.-2 on the point of admission of revision.
2.It is admitted case that present revisionist Dharmwati had married to Sahendra Singh (Respondent no.-2). It is also admitted fact that Sahendra Singh had filed petition of divorce through suit no. 509 of 2003 (Sahendra Singh Vs. Smt. Dharmwati, which was decreed ex parte on 07.12.2004. Thus a decree of divorce had been passed for dissolution of marriage of revisionist Dharmwati and Respondent no.-2 Sahendra Singh, which is still existing and is in force.
3.It is also admitted fact that after passing of the ex-parte decree of divorce, present revisionist had filed as complaint case no. 397/2009 (Smt. Dharmwati Devi Vs. Sahendra Singh) in the Court of Judicial Magistrate (/Civil Judge (J.D.) Deoband), Saharanpur. Said Magistrate has passed order dated 04.05.2009 for summoning the opposite party Sahendra Singh for the offence u/s 494 IPC, that is for the offence of bigamy. This summoning order was challenged by Sahendra Singh in criminal revision no.-254/2011 (Sahendra Singh Vs. State of U.P.). This revision was allowed by the judgment dated 10.08.2011 by Additional Sessions Judge, Court No.-7, Saharanpur, by which aforesaid summoning order dated 04.05.2009 was quashed. This impugned judgment dated 10.08.2011 has been challenged in the present revision before this Court by Smt. Dharmwati alleging herself to be a wife of respondent no.-2 Sahendra Singh.
4.Learned counsel for the revisionist contended that although ex-parte decree of the divorce was passed by the Court on 07.12.2004 but it was challenged in an appeal no.-232/2010 (Smt. Dharmwati Devi Vs. Sahendra Singh) which is still pending, therefore, Respondent no.-2 Sahendra should not have performed second marriage during pendency and till disposal of said appeal. He contended that since learned Magistrate had rightly summoned respondent for the offence u/s 494 IPC relating to bigamy. He argued that in these circumstances, impugned order of learned revisional court should be quashed and revision should be allowed.
5.Sri Prashant Kumar, learned counsel for the respondent no.-2 contended that alleged act of second marriage is said to have been committed after passing of the ex-parte decree of divorce on 07.12.2004, and before institution of any appeal. At that time, marriage of revisionist with respondent no.-2 Sahendra Singh had been dissolved legally. Therefore, no offence of illegal second marriage or bigamy has been committed by respondent no.-2. He contended that in absence of any interim or stay order, the judgment and decree of divorce dated 07.12.2004 between the parties is continuously existing between the parties from 07.12.2004 till now. This fact was properly considered by the lower revisional court. The impugned judgment dated 10.08.2011 is proper and justified, therefore, revision should be dismissed.
6.I have heard rival contentions and gone through the records and legal position.
7.It is admitted fact that the marriage of revisionist and respondent no.-2 has been dissolved by the judgment dated 07.12.2004 passed by the competent court by judgment in case no. 509/2003 (Sahendra Singh Vs. Dharmwati ). It is also admitted that the first appeal against the said judgment was filed after the second marriage of respondent no.-2, before this Court and in said appeal only order of issuance of notice had been passed. Admittedly no interim order of stay of decree of divorce dated 07.12.2004 had been passed. The factum of divorce was not brought in the knowledge of Judicial Magistrate, Deoband till 04.05.2009 when summoning order was passed by it; but when the said order was challenged and fact of divorce, and it was brought in knowledge of revisional court that at the time of alleged offence of bigamy mentioned in complaint case, marriage of parties had been dissolved, then lower revisional court had acted correctly in passing of the impugned judgment and order. During exercise of jurisdiction u/s 397 Cr.P.C., inter alia, the propriety of the order has to be seen. When it has been found that marriage of respondent Sahendra with revisionist Dharmwati has already been dissolved at the time of alleged illegal second marriage then legally respondent had not first 'wife' in existence due to dissolution of his earlier marriage. Therefore, if he performed his any marriage with any person after 07.12.2004, then it cannot be said that he had committed any offence punishable u/s 494 IPC.
8.The judgment of apex court in Gopal Divedi v. Prabha Divedi, (2002) 10 SCC 216, at page 216 is as under :
"1. Leave granted.
2. It appears that the appellant secured an ex parte decree divorcing his first wife on 6-7-1990, though the wife says that she never had notice of the said decree or the proceedings commenced by her husband. What the appellant did was to undergo a marriage with another lady on 25-5-1993 presumably on the strength of the ex parte decree secured by him. But his good days with the newly married wife did not last long as the first wife succeeded in getting the ex parte decree set aside on 31-3-1994. The fact remains that there is no decree of divorce as between the appellant and his first wife ever since 31-3-1994.
3. The first wife filed a complaint against the appellant on 28-3-1995 alleging that the appellant has committed the offence under Section 494 IPC. On receiving the process issued by the criminal court the appellant moved the High Court of Allahabad for quashing the criminal proceedings. The main plank adopted by the appellant is that on the date when he conducted the second marriage the first marriage was not subsisting in view of the ex parte decree which continued in force on the said date.
4. Learned counsel for the respondent (first wife) did not dispute the fact that she moved for setting aside the ex parte decree and succeeded in it when an order was passed on 31-3-1994. As per that order the ex parte decree of divorce dated 6-7-1990 was set aside. If that be so, the appellant cannot possibly be convicted for the offence under Section 494 IPC on the premise that he had undergone a ceremony of marriage with another lady on 25-5-1993.
5. Learned counsel for the respondent contended that the appellant is guilty of adultery at least from the date 31-3-1994. We are not considering that aspect since no complaint has been filed by the first wife against the appellant on that score.
6. As it is, we feel that the criminal proceeding now pending against the appellant for the offence under Section 494 IPC is only an exercise of futility. We do not want the criminal court to waste its time for that purpose.
7. We, therefore, allow this appeal, set aside the impugned order and quash the proceeding taken pursuant to the criminal complaint filed by the first wife. It is needless to say that this order is without prejudice to the right, if any, of the first wife filing any complaint against the appellant for any other offence."
9. In Pashaura Singh v. State of Punjab, (2010) 11 SCC 749 Apex Court had held :
"10. Section 494 IPC, inter alia, requires the following ingredients to be satisfied, namely, (i) the accused must have contracted first marriage; (ii) he must have married again; (iii) the first marriage must be subsisting; and (iv) the spouse must be living. Insofar as the present case is concerned the appellant's marriage with Kamaljeet Kaur was not subsisting on 2-1-2002 when he is said to have married second time.
11. Pertinently, before the High Court, along with reply, the complainant Balwant Singh annexed copy of an affidavit filed by Kamaljeet Kaur which states that she was not aware of the divorce proceedings filed by her husband Pashaura Singh. However, from this affidavit, it is apparent that her husband has obtained a divorce judgment. There is nothing in the affidavit that divorce judgment has been stayed or set aside. On the face of the allegations made in the first information report, therefore, ingredients of the offence under Section 494 IPC are not satisfied."
10. On the basis of above discussion and legal position, as held by Hon'ble Apex Court, there appears no commission of any over act or offence relating to bigamy as punishable u/s 494 IPC. After dissolution of his first marriage through the ex-parte decree of a competent court, the respondent no.-2 had not committed any offence when he had performed his second marriage.
11.These facts and legal position had been considered and discussed in the impugned judgment, and are found correct. Therefore, no illegality impropriety or error, either factual or legal, appears to have been committed by the learned Additional Sessions Judge at the time of passing of the impugned judgment dated 10.08.2011. Therefore, this revision is dismissed summarily.
Order Date :- 4.9.2015 Sanjeev .
Court No. - 23Case :- CRIMINAL REVISION DEFECTIVE No. - 59 of 2012 Revisionist :- Smt. Dharmwati Opposite Party :- State Of U.P. And Anr.
Counsel for Revisionist :- P.S. Pundir Counsel for Opposite Party :- Govt. Advocate,Ajay Kumar Singh Hon'ble Pramod Kumar Srivastava,J.
Heard Sri P.S. Pundir, learned counsel for the revisionist on the point of condonation of delay of 74 days in filing the revision. No counter affidavit has been filed and ground of delay in filing of revision are not very satisfactory, but delay is not much therefore, for affording opportunity of hearing in the interest of justice and for deciding the matter on merit, this delay is condoned.
Heard learned counsel for the parties on point of admission of revision. Judgment on separate sheet.
Order Date :- 4.9.2015 Sanjeev