Andhra Pradesh High Court - Amravati

Palagiri Samiulla vs The State Of Ap., on 29 April, 2022

         HON'BLE SRI JUSTICE SUBBA REDDY SATTI


           CRIMINAL PETITION NO.4364 of 2018

ORDER:-


     This Criminal Petition is filed by A1 to A7, under Section

482 of the Code of Criminal Procedure, 1973 (for short „Cr.P.C.‟)

seeking to quash the proceedings, in C.C.No.173 of 2018 on the

file of learned Additional Judicial Magistrate of First Class,

Rayachoty, YSR Kadapa District.


2.   2nd respondent in the above criminal petition, lodged

complaint before Police, Rayachoty Police Station, alleging that

A1 contacted second marriage with A4, without obtaining valid

divorce as per law and Islamic Injunctions and marriage

certificate was issued by Government, SAR QAZI of Rayachoty.

Basing on the said complaint, Police registered Cr.No.602 of

2017 for the offence punishable under Section 494 read with 34

of the Indian Penal Code, 1860 (for short „IPC‟). After

investigation, charge sheet was filed and it was numbered as

C.C.No173 of 2018.

3. Heard Sri D. Kodanda Rami Reddy, learned counsel for

the petitioners and Sri S.V. Sainadh, learned Special Assistant

Public Prosecutor for respondent No.1. There is no

representation for respondent No.2.

4. Learned counsel for the petitioners submits that since the

petitioners belong to Muslim community and marriage took

place as per customs in vogue in Muslim religion, offence under

Section 494 of IPC will not attract against them. As per Muslim

personal law, husband contacting second marriage is not an

offence under Section 494 of IPC. Therefore, continuation of

criminal proceedings against the petitioners is an abuse of

process of law and hence, he prays to allow the petition. The

learned counsel placed reliance on un reported judgement in

Crl.P.No.11625 of 2018.

5. Learned Special Assistant Public Prosecutor has placed

before this Court, the decision reported in Jafar Abbas

Rasoolmohammad Merchant v. State of Gujarat1, wherein

Single Judge of Gujarat High Court elaborately discussed

application of Section 494 of IPC qua Muslim husband and held

that Muslim personnel, cannot be prosecuted for the offence

punishable under Section 494 of IPC.

6. In the complaint lodged before C.I. of Rayachoty Police

Station, it was averred that 2nd respondent/complainant is

legally wedded wife of A1 and their marriage was solemnized on

09.09.2004 at Groundnut Mills of Konduru Azmathulla of

Masapeta of Rayachoty town, Kadapa District, as per Muslim

rites and customs prevailing in Dudekula community. It was

further averred that 2nd respondent/complainant studied B.Sc.

Maths and B.Ed. course by the date of their marriage. After

marriage, the accused started harassing her physically and

mentally by demanding additional dowry and ill-treated her. It

was further averred in the complaint that accused insisted 2nd

2015 SCC Online Guj 5552

respondent/complainant to give consent in writing for second

marriage, for which she did not accept. 2nd respondent

/complainant also lodged another complaint and the same was

registered as crime No.261 of 2008 for the offence punishable

under Section 498-A of IPC and later it was numbered as

C.C.No.502 of 2008 on the file of learned Judicial Magistrate of

First Class, Rayachoty. She also filed DVC No.2 of 2009 on the

file of learned Additional Junior Civil Judge, Mandanapalle

besides filing M.C.No.11 of 2009 and another M.C.No.18 of 2010

was filed on behalf of minor child. According to her, on

16.07.2017, she came to know about solemnization of second

marriage of A1 with A4 on 20.05.2017, with the help of other

accused. Basing on the said complaint, Police registered the

crime as stated supra and filed charge sheet.

7. Admittedly A1 to A7 and respondent No.2 belong to Muslim

community. 2nd respondent /complainant specifically averred in

the complaint that she belongs to Muslim community and the

marriage took place as per Muslim customs.

8. It is to be considered whether A1 to A7 committed offence

under Sec 494 IPC and continuing of the proceedings would

amount to abuse of process of law?

9. The main contention of the learned counsel for the

petitioners in seeking to quash the proceedings is that under

Muslim personal law second marriage is not void and personal

law permits to marry upto four marriages. The person, who

marries four wives is to treat all the wives equally.

10. It is apt to extract Section 494 IPC, which reads thus:

"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 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.

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.

11. In Lily Thomas and Ors. Vs. Union of India (UOI) and

Ors.2, the Hon‟ble Apex Court held as under:

"37. The position under the Mahommedan Law would be different as in spite of the first marriage, a second marriage can be contracted by the husband, subject to such religious restrictions as have been spelled out by Brother Sethi, J. in his separate judgment, with which I concur on this point also. This is the vital difference between Mahommedan Law and other personal laws. Prosecution under Section 494 in respect of a second marriage under Mohammedan Law can be avoided only if

2000 (6) SCC 224

the first marriage was also under the Mahommedan Law and not if the first marriage was under any other personal law where there was a prohibition on contracting a second marriage in the life-time of the spouse."

12. In Jafar Abbas Rasoolmohammad Merchant v. State of

Gujarat the Gujarat High Court held at para 71, which is

extracted hereunder:

"71. In view of the above, so far as the offence punishable under Section 494 of the IPC is concerned, I am left with no other option but to accept the submission of Mr. Joshi that his client cannot be prosecuted for the offence punishable under Section 494 of IPC. To this extent, the petition will have to be allowed, and, is accordingly, allowed."

13. Learned Single Judge of this Court in Criminal Petition

No.11625 of 2018, while dealing with applicability of Section

494 of IPC on Muslim Community, by placing reliance on Lily

Thomas and Ors. Vs. Union of India (UOI) and Ors., held that

Muslim second marriage is not void ab initio that the husband

to conduct as per the personal law that is not prone to

prosecution under Section 494 of IPC.

14. In view of the pronouncements referred supra, since the

petitioners/A1 to A7 and 2nd respondent/complaint belong to

Muslim community, continuing prosecution against them for

the offence under Sec 494 IPC is abuse of process.

15. Accordingly, this criminal petition is allowed and the