Bombay High Court
Sow. Jyousana Subhash Pawar vs Vasant Ratan Nikam And Anr on 26 October, 2016
Bench: V.K. Jadhav
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL WRIT PETITION NO. 1372 OF 2015
Sow. Jyousana W/o. Subhash Pawar,
Age. 38 years, Occu. Household,
R/o. House No. A-5, Gulab Vishwa Pethe Nagar,
Bhausinghpura, Tal. & Dist. Aurangabad.
...PETITIONER
[Original Complainant]
Versus
1]
Vasant S/o. Ratan Nikam,
Age. 35 years, Occu. Business,
R/o. House No. A-5, Gulab Vishwa,
Pethe Nagar, Bhausingpura,
Tal. & Dist. Aurangabad.
2] The State of Maharashtra.
...RESPONDENTS
[Respondent No. 1-
Original accused No. 1]
...
Advocate for Petitioner : Mr. Sonpethakar Pradeep N.
Advocate for Respondent No. 1 : Mr. B. N. Magar.
APP for respondent no.2 : Miss R P Gour
...
CORAM : V.K. JADHAV, J.
Dated: October 26, 2016
...
ORAL JUDGMENT:-
1. Heard finally with consent of the parties.
2. Being aggrieved by the judgment and order dated
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3.10.2015 in criminal revision No.182/2015, the original
complainant in RCC No.1180/2015 preferred this writ
petition.
3. Brief facts giving rise to the present writ petition
are as follows :-
a. On 7.3.2009 respondent no.1 had performed
marriage with one Sarika and even she gave birth to two
children out of their marital wedlock. Their marriage is
still in existence. However, by concealing the said first
marriage and by deceiving the daughter of the present
petitioner, by name Neha, respondent no.1 original
accused performed second marriage with said Neha.
Thus, the petitioner-complainant constrained to file a
complaint before the Judicial Magistrate First Class,
Aurangabad bearing RCC No.1180/2015 against the
present respondent and three more accused persons for
having committed an offence punishable under section
494 r.w. section 34 of the Indian Penal Code. The
learned Judicial Magistrate First Class, Aurangabad by
order dated 1.7.2015 issued process against the present
respondent-original accused no.1 alone for having
committed an offence punishable under section 494 of
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the Indian Penal Code, however, dismissed the
complaint against the remaining accused nos. 2 to 4.
b. Being aggrieved by the same, respondent no.1
original accused preferred criminal revision
no.182/2015 before the Sessions Court, Aurangabad
and the learned Additional Sessions Judge, Aurangabad
by judgment and order dated 3.10.2015 allowed the
criminal revision application and thereby quashed and
set aside the order of issuance of process against
respondent-original accused no.1. Hence, this Writ
Petition.
3. The learned counsel for the petitioner submits that
the petitioner-original complainant is the mother of
victim Neha. Respondent-original accused no.1 though
already married and his first marriage was in existence,
married with the daughter of the petitioner by
concealing his first marriage. Respondent accused no.1
has committed an offence punishable under section 494
of the Indian Penal Code. Learned counsel submits
that, the complainant being a mother of victim Neha,
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with whom the respondent-accused no.1 had performed
second marriage, entitled to lodge a complaint for
commission of an offence under section 494 or 495 of
the Indian Penal Code as the case may be and in view of
the provisions of Section 198 Sub section (1) clause (c),
the complaint filed by the mother is maintainable.
4. Learned counsel for the petitioner in order to
substantiate his contentions placed reliance on the
judgment of Supreme Court in case of A. Subhash
Babu Vs. State of A.P. And another, reported in 2011
AIR SCW 4702. The Hon'ble Supreme Court in para 10
of the said case has made following observations:-
"10. .......... A bare reading of complaint
together with statutory provisions makes it
abundantly clear that the appellant having a wife
living, married with the respondent No. 2 herein by
concealing from her the fact of former marriage and
therefore her complaint against the appellant for
commission of offence punishable under Sections
494 and 495, IPC is, maintainable and cannot be
quashed on this ground. To hold that a woman with
whom second marriage is performed is not entitled
to maintain a complaint under Section 494 of IPC
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though she suffers legal injuries would be height of
perversity."
5. The learned counsel for respondent submits that
the respondent-original accused filed today before this
Court the affidavit of his wife Neha. She has accepted
her status as second wife of the respondent-accused
and she denied the allegations made in the petition.
She has also stated in her affidavit that she got married
with respondent no.1 accused with the consent of his
first wife and it was her will and wish that she got
married with him. At the time of marriage she was 20
years of age and she was conscious about her decision
and no pressure was applied on her. Even in a missing
complaint lodged before the police authority she made a
statement in the like manner. Even copy of the
statement is annexed with her affidavit. It is further
stated in the affidavit that she is living with her
husband happily and she is not having any complaint
against him. Further, she also delivered a female child
and said child at present is six months old and her
husband/respondent herein is taking every care of child
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and herself.
6. Learned counsel for respondent-accused submits
that in view of the provisions of Section 198 (1) Clause
(c) the complaint may be made by the aggrieved person
or on her behalf by her father, mother, brother, sister,
son or daughter or by her father's brother, or sister or
with the leave of the Court by any other person related
to her by blood, marriage or adoption. The learned
counsel submits that, in the light of the affidavit placed
on record, it can be said that Neha is not willing to file
any complaint against her husband-respondent herein
and in view of that the complaint cannot be filed by her
mother on her behalf. The learned counsel submits
that, the ratio laid down in a case A. Subhash Babu
(supra) is in the different context and cannot be made
applicable to the facts and circumstances of the present
case.
7. I have also heard the learned APP for the State.
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8. Section 198 sub section (1) and that relevant
clause (c) reads as under :
"198. Prosecution for offences against
marriage.- (1) No Court shall take cognizance of
an offence punishable under Chapter XX of the
Indian Penal Code except upon a complaint made
by some person aggrieved by the offences:
Provided that-
(a).........
(b)...........
(c) where the person aggrieved by an offence
punishable under [section 494 or section 495] of the
Indian Penal Code 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, [with the leave of the Court, by any
other person related to her by blood, marriage or
adoption]."
9. It is clear from the provisions of Section 198 of
Cr.P.C., that court cannot take cognizance of an offence
punishable under chapter XX of the Indian Penal Code
except upon a complaint made by some persons
aggrieved by the offence. In terms of sub section (1)
and considering the allegations made in the complaint
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which is subject matter of the present criminal writ
petition, Neha would be an aggrieved person. In terms
of clause (c) of sub section (1) of Section 198 of Cr.P.C.,
Neha being aggrieved person may file a complaint or the
complaint may be made on her behalf by the person as
detailed in clause (c). Considering the affidavit of Neha
placed on record, it appears that she declined to be an
aggrieved person and she is not willing to file any
complaint against the respondent-accused with whom
at present she is residing happily and even she gave
birth to a female child out of their wedlock.
10. In a case of A. Subhash Babu (supra), second
wife has lodged complaint and in the circumstances of
that case, the Supreme Court held that second wife is
entitled to file a complaint for commission of offence
punishable under section 494, 495 of the Indian Penal
code. The Supreme Court has observed that, it would
be a height of perversity if it is held that, woman with
whom a second marriage is performed is not entitled to
file a complaint under section 494 of Indian Penal Code.
The Supreme Court has made aforesaid observation in
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the different context. Had it been a case that victim
Neha filed the complaint before the Court, then in the
light of the ratio laid down in the aforesaid case, her
complaint against her husband would have been
maintainable. However, in the facts and circumstances,
of the present case, the petitioner-mother cannot file a
complaint on behalf of her daughter Neha, since Neha is
not willing to file any complaint against her husband.
11. In view of this, the view taken by the learned
Additional Sessions Judge appears to be sound. No
interference is required. There is no substance in the
writ petition. Writ Petition is liable to be dismissed.
Hence, I proceed to pass the following order.
O R D E R
I. Writ petition is hereby dismissed.
II. Rule discharged.
( V.K. JADHAV, J. )
...
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