Durga Charan Hansdah vs State Of Delhi And Another
2000 Latest Caselaw 299 Del

ORDER

Case Note:

Hindu Marriage Act, 1955 - Section 2(2) and 17--Bigamy--Parties belong to tribes--Whether governed by Act? No-Untill directed by Central Government through any notification--Since Hindu Marriage Act is not applicable--Petitioner is rightly discharged Under Section 494 of Indian Penal Code--Order set aside--Revision allowed.

M.S.A. Siddiqui, J.

1. This revision arises out of circumstances which may be shortly stated as follows.

2. Petitioner's first wife (respondent No. 2) aggrieved by her husband's conduct in marrying a second wife laid a complaint under Sections 494/109 IPC against him and his second wife Smt. Hansfha. On the complaint being filed, process was issued against the petitioner. After recording precharge evidence, the learned Metropolitan Magistrate discharged the petitioner on the ground that the respondent No. 2 had failed to prove that the second marriage contracted by the petitioner with Pankajani attracts the penal provision of Section 494 I.P.C. Aggrieved thereby, respondent No. 2 moved the Additional Sessions Judge by filing a revision, which was allowed vide orders dated 26.2.1997 and the trial court was directed to frame a charge under Section 494 IPC against the petitioner. Hence this revision.

3. Assailing validity of the impugned order, learned counsel for the petitioner has strenuously urged that the parties being members of the Scheduled Tribe are not governed by the provisions of the Hindu Marriage Act (for short "the Act") and the learned Additional Sessions Judge has committed a patent illegality in applying the provisions of the Act to the facts of the present case and holding that a prima facie case under Section 494 IPC had been made out against the petitioner. The first question to be considered is whether the parties are governed by the Act. The Act was passed in 1955 to amend and codify the law relating to marriage among Hindus. Section 5 of the Act prescribes the conditions which have to be fulfillled for the solemnization of a marriage between two Hindus, i.e., between two persons defined as Hindus by Section 2(3) of the Act. The first condition is that neither party has a spouse living at the time of the marriage. Section 11 states "any marriage solemnized after the commencement of the Act shall be null and void and may, on a petition presented by either party thereto, be so declared by a decree of nullity if it contravenes anyone of the conditions specified in Clauses (I), (IV) and (V) of Section 5". Therefore a marriage between two Hindus is null and void if either of them has a spouse living at the time of the marriage. That is sufficient to attract the provisions of Section 494 IPC. Section 17 of the Act provides that any marriage between two Hindus solemnized after the commencement of the Act is void if at the date of such marriage either party had a husband and wife living. Thus, Section 17 of the Act statutorily recognizes the principle of monogamous marriages among Hindus. Provision of Section 17 has to be read in harmony and conjunction with the provisions of Section 494 of the Penal Code as Section 17 clearly provides that provisions of Sections 494 and 495 IPC shall apply accordingly. The voidness of the marriage under Section 17 of the Act is in fact one of the essential ingredients of Section 494 IPC because the second marriage will become void only because of the provisions of Section 17 of the Act. [Gopal Lal Vs. State of Rajasthan, : Priya Bala Ghosh Vs. Suresh Chandra Ghosh, AIR 1971 Supreme Court 1153: Bhaurao Shankar Lokhande and Another Vs. The State of Maharashtra and Another, ]. A complaint by a Hindu wife against her husband for the offence of bigamy punishable under Section 494 IPC is maintainable as the effect of Section 17 of the Act is to make Section 494 I.P.C. applicable to Hindus.

4. In the instant case it is an admitted fact that petitioner and the respondent No. 2 are members of the scheduled tribe. Under Section 2(2) of the Act it has been clearly stipulated that the Act would not apply to members of the Scheduled Tribe unless there is a notification by the Central Government in the Official Gazette making the Act applicable to the Scheduled Tribes. Thus, Sub-section (2) of Section 2 of the Act has the effect of laying down that persons belonging to the scheduled tribe will in matters of marriage continue to be governed by the personal law which was hitherto applied to them and not by any of the provisions of the Act unless the Central Government by notification directs that any such provisions should be applicable to them. No such notification has been produced before the Court. In this view of the matter, I have no hesitation in coming to the conclusion that the petitioner and Respondent No. 2 are not governed by provisions of the Act and so the provisions of Section 17 of the Act and Section 494 IPC are not attracted to the facts of the present case. The petitioner was rightly discharged by the learned Magistrate and the learned Additional Sessions Judge has committed a manifest illegality in reversing the order of discharge. Consequently, the impugned order cannot be allowed to stand as it has resulted in flagrant miscarriage of justice.

5. For the foregoing reasons the revisions is allowed and the impugned order dated 26.2.1997 passed by the Additional Sessions Judge is set aside and that of the trial court is restored.