Andhra Pradesh High Court - Amravati

K.P.Kiranmai vs The State Of Andhra Pradesh And Another on 4 January, 2024

     THE HON'BLE SRI JUSTICE TARLADA RAJASEKHAR RAO

        CRIMINAL PETITION Nos.8948 and 9158 OF 2018


COMMON ORDER:

The present criminal petitions are filed seeking to call for

the records pertaining to C.C.No.614 of 2014, on the file of the

Judicial Magistrate of First Class, Adoni, Kurnool and to quash

the same.

2. The 2nd respondent/de-facto complainant is the wife of the

accused No.1, who is the petitioner in Crl.P.No.8948 of 2018.

Accused No.2, who is the petitioner in Crl.P.No.9158 of 2018, is

the 2nd wife of the accused No.1. Hence, the common order.

3. The 2nd respondent lodged a report before the Adoni Police

Station, alleging that the accused No.1/petitioner and his family

members harassing the 2nd respondent mentally and physically

and later got married with another woman, who is accused No.2,

by name Kiranmai R/o. Bangalore, Karnataka State. On

22.10.2011, all the accused came to the house of the 2nd

respondent and voluntarily caused hurt.

4. Basing upon the said report, the police registered the crime

as FIR No.16 of 2012 dated 25.01.2012, for the offences

punishable under Sections 498(A), 504, 506, 494, 323 r/w 149

of the Indian Penal Code, 1860 (for short "I.P.C"). After due

investigation, the police laid a charge sheet and the same was

numbered as C.C.No.614 of 2014, on the file of the Judicial

Magistrate of First Class, Adoni, Kurnool. Learned Magistrate

issued summons to all the accused.

5. Now, said C.C. was assailed in the present criminal

petitions seeking to quash the same, on the sole ground that

Section 494 of I.P.C has no application to the present case, in

view of the bar contained in Section 2(2) of the Hindu Marriage

Act, 1955 (for short "the Act").

6. Heard Sri M.Chalapathi Rao, learned counsel for the

petitioners. Despite service of notice, no appearance was made

on behalf of the unofficial respondent/defacto complainant.

7. For deciding the point for consideration, it is expedient to

reproduce Section 2(2) of the Act:

Section2(2): Notwithstanding anything contained in sub-section (1), nothing contained in this Act shall

apply to the members of any Scheduled Tribe within the meaning of clause (25) of Article 366 of the Constitution unless the Central Government, by notification in the Official Gazette, otherwise directs.

8. Learned counsel for the petitioners submitted that the

central Government has not notified in the Official Gazette,

applying the provisions of the Act, to the Schedule Tribes,

therefore, learned counsel for the petitioner would contend that

the Act is not applicable to the Schedule Tribes, as such there is

no bar to the second marriage and he would further contend

that, whoever having a spouse living marries in any case in

which such marriage is not void by reason of its taking place

during the life time of such spouse, hence, he urges to quash

Section 494 of I.P.C.

9. Learned counsel for the petitioners relied on the judgment

of the Hon'ble Apex Court reported as Dr Surajmani Stella

Kujur v. Durga Charan Hansdah and another 1 paragraph

Nos.14 and 15 extracted hereunder:

14. Nowhere in the complaint the appellant has referred to any alleged custom having the force of law which prohibits the solemnisation of second marriage by the respondent and the consequences thereof. It may be emphasised that mere pleading

(2001) 3 SCC 13

of a custom stressing for monogamy by itself was not sufficient unless it was further pleaded that second marriage was void by reason of its taking place during the life of such husband or wife. In order to prove the second marriage being void, the appellant was under an obligation to show the existence of a custom which made such marriage null, ineffectual, having no force of law or binding effect, incapable of being enforced in law or non est. The fact of second marriage being void is a sine qua non for the applicability of Section 494 IPC. It is settled position of law that for fastening the criminal liability, the prosecution or the complainant is obliged to prove the existence of all the ingredients constituting the crime which are normally and usually defined by a statute. The appellant herself appears to be not clear in her stand inasmuch as in her statement in the court recorded on 24-10-1992 she has stated that "I am a Hindu by religion". The complaint was dismissed by the trial court holding, "there is no mention of any such custom in the complaint nor there is evidence of such custom. In the absence of pleadings and evidence reference to Book alone is not sufficient".

The High Court vide the judgment impugned in this appeal held that in the absence of notification in terms of sub-section (2) of Section 2 of the Act no case for prosecution for the offence of bigamy was made out against the respondent because the alleged second marriage cannot be termed to be void either under the Act or any alleged custom having the force of law.

15. In view of the fact that parties admittedly belong to the Scheduled Tribes within the meaning of clause (25) of Article 366 of the Constitution as notified by the Constitution (Scheduled Tribes) Order, 1950 as amended by Scheduled Castes and Scheduled Tribes Order (Amendment) Acts 63 of 1956, 108 of 1976, 18 of 1987 and 15 of 1990 passed in terms of Article 342 and in the absence of specific pleadings, evidence and proof of the alleged custom making the second marriage void, no offence under Section 494 of the Indian Penal

Code can possibly be made out against the respondent. The Trial Magistrate and the High Court have rightly dismissed the complaint of the appellant.

10. The 2nd respondent/defacto complainant in the report

lodged to the police asserted that, she belongs to Koracha

(Erakula), which is a schedule tribe, and Sri Sravan Kumar

Naidana, learned Special Assistant Public Prosecutor, fairly

stated that Erakula is a schedule tribe as per part XII of the

Constitution (Schedule Tribes) order 1950 (as amended by

Schedule casts and Schedule tribes order (Amendment) Act

63/1956, 108 of 1976, 18 of 1987 and 15/1990. In the FIR the

police has referred the accused as Koracha (Erukala). As the

defacto complainant and the accused are the Schedule tribes,

the bar under Section 2(2) of the Act is applicable to the present