Karnataka High Court

Sri. Kanki Chendrappa S/O Late ... vs Smt. Thriveni Alias Githa W/O. ... on 3 February, 2022

Bench: M.Nagaprasannapresided Bymnpj

          IN THE HIGH COURT OF KARNATAKA
                  DHARWAD BENCH

      DATED THIS THE 3RD DAY OF FEBRUARY 2022

                       BEFORE

     THE HON'BLE MR. JUSTICE M.NAGAPRASANNA

          CRIMINAL PETITION NO.102175/2021

BETWEEN

1.   SRI. KANKI CHENDRAPPA S/O LATE DODDA BASAPPA
     AGE 69 YEARS, OCC. AGRICULTURE,
     R/O. PATTANASERAGU VILLAGE,
     TQ. AND DIST BALLARI-583101.

2.   SMT. LAKSHMI DEVI W/O.KANKI CHENDRAPPA
     AGE 62 YEARS, OCC-AGRICULTURE,
     R/O. PATTANSERAGU VILLAGE,
     TQ AND DIST BALLARI-583101.

3.   SRI DODDA THIPPESWAMY S/O. KANKI CHENDRAPPA
     AGE 44 YEARS, OCC-AGRICULTURE,
     R/O. PATTANSERAGU VILLAGE,
     TQ. AND DIST BALLARI-583101.

4.   SRI SANNA JADEPPA S/O. DODDA BASAPPA
     AGE 71 YEARS, OCC- AGRICULTURE,
     R/O. PATTANASERAGU VILLAGE,
     TQ AND DIST BALLARI-583101.

5.   SRI YARRISWAMY S/O. DADDA JADEPPA,
     AGE 54 YEARS, OCC- AGRICULTURE,
     R/O PATTANASERAGU VILLAGE,
     TQ. AND DIST BALLARI-583101.
6.   SRI PANDU RANGA S/O SANNA JADEPPA,
     AGE 42 YEARS, OCC AGRICULTURE
                             2




      R/O. PATTANASERAGU VILLAGE,
      TQ. AND DIST BALLARI-583101.

7.    SMT. SUSHEELAMMA W/O. LINGAPPA
      AGE 64 YEARS, OCC-AGRICULTURE,
      R/O. PATTANSERAGU VILLAGE
      TQ. AND DIST BALLARI-583101.

8.    SMT. BASAMMA W/O. SOMAPPA
      AGE 64 YEARS, OCC-AGRICULTURE,
      R/O.PATTANASERAGU VILLAGE,
      TQ. AND DIST BALLARI-583101.

9.    SRI RAMACHANDRA S/O. BASAPPA
      AGE 52 YEARS, OCC-AGRICULTURE,
      R/O. PATTANASERAGU VILLAGE,
      TQ. AND DIST BALLARI-583101.

10.   SRI TUKARAM S/O. NARAYANAPPA
      AGE 58 YEARS, OCC-AGRICULTURE,
      R/O. PATTANASERAGU VILLAGE,
      TQ. AND DIST BALLARI-583101.

11.   SMT RANGAMMA W/O. THUKARAMA
      AGE 54 YEARS, OCC-AGRICULTURE,
      R/O. PATTANASERAGU VILLAGE,
      TQ. AND DIST BALLARI-583101.

12.   SRI SHIVALINGAPPA S/O. LINGAPPA
      AGE 49YEARS, OCC-AGRICULTURE,
      R/O. PATTANASERAGU VILLAGE,
      TQ. AND DIST BALLARI-583101.

13.   SRI HANUMANTHAPPA S/OL LAKSHMANNA
      AGE 69 YEARS, OCC-AGRICULTURE,
      R/O. PATTANASERAGU VILLAGE,
      TQ. AND DIST BALLARI-583101.

14.   SRI VADDARA GADILINGAPPA S/O. MALLAPPA
      AGE 64 YEARS, OCC-AGRICULTURE,
                           3




    R/O. VORVAI VILLAGE,
    TQ. AND DIST BELLARI-583101.
                                         ...PETITIONERS

    (BY SRI SRINAND A. PACHHAPURE, ADVOCATE)

AND :

SMT. THRIVENI ALIAS GITHA
W/O. KANKI THIPPESWAMY,
AGE 29 YEARS, OCC-HOUSEWIFE,
R/O. PATTANASERAGU VILLAGE,
TQ. AND DIST BALLARI,
PRESENTLY RESIDING AT
DASAPURA VILLAGE, TQ. SIRUGUPPA,
DIST BALLARI-583101.
                                         ...RESPONDENT
(BY SRI BASAVANAGOUDA T., ADVOCATE)


    THIS CRIMINAL PETITION IS FILED U/S 482 OF CR.P.C.,

SEEKING TO QUASH THE ENTIRE PROCEEDINGS IN C.C.NO.

934/2018 PENDING ON THE FILE COURT OF III ADDL.CIVIL

JUDGE AND JMFC, BALLARI REGISTERED FOR THE OFFENCE

PUNISHABLE U/S 494, 497 R/W SEC 109 AND 114 OF IPC,

ORDER SHEET MARKED AT ANNEXURE-A, IN SO FAR AS

PRESENT PETITIONERS ARE CONCERNED.


    THIS PETITION COMING ON FOR ADMISSION THIS DAY,

THE COURT MADE THE FOLLOWING:
                              4




                           ORDER

The petitioners are before this Court calling in

question the proceedings in Criminal Case No.934/2018

registered for the offences punishable under Sections 494,

497, 109 and 114 of IPC.

2. Brief facts leading to filing of the present petition

as borne out from the pleadings are as follows :

The petitioners are members and relatives of the

family of accused No.1-husband, who is not before this

Court and is charged with bigamy. The respondent-

complainant and accused No.1 get married on 05.05.2011.

The allegation is that the husband after marriage begun to

harass the complainant for want of dowry and in the year

2014, it is the claim of the complainant that she was sent

to the house of her parents for taking medial treatment

and was never taken back to the matrimonial house.

3. In the year 2016, the complainant claims to have

come to know about the second marriage of the husband

along with accused No.11, who is also not before this

Court. On the knowledge of such marriage taking place

between the 1st accused and accused No.11, the

complainant registers a private complaint invoking Section

200 of Cr.P.C. arraigning all the other members of the

family who had allegedly attended the 2nd marriage

happened between the 1st accused and the 11th accused.

The learned Magistrate having taken cognizance for the

offences punishable under Sections 494, 497, 109 and 114

of IPC has driven the petitioners to this Court.

4. Heard Sri Shrinand A.Pachchapure, learned counsel

appearing for the petitioners and Sri Basavanagouda T.,

learned counsel appearing for the respondent-complainant.

5. The learned counsel appearing for petitioners

would vehemently argue and contend that the petitioners

are no way connected to the alleged 2nd marriage. It is not

the case of the complainant that the alleged 2nd marriage

of the 1st accused-husband has taken place at the instance

of the petitioners or the presence of petitioners. The

alleged second marriage will not result in criminal

proceedings being initiated for the offence of bigamy or

section 109 of IPC and even under section 114.

6. On the other hand, the learned counsel

representing respondent-complainant would vehemently

refute the submissions of the learned counsel appearing for

petitioners and contend that these very petitioners were

present at the time when the marriage between the

complainant and the 1st accused taken place and it is these

very petitioners, who were present at the time when the

marriage of accused No.1 and accused No.11 takes place,

the alleged second marriage and therefore, contends that it

is a matter of trial that the petitioners will have to come

out clean.

7. I have given my anxious consideration to the

submissions made by the respective counsel and have

perused the material on record.

8. In furtherance whereof the issue that falls for my

consideration is, whether the petitioners herein who are

family members of the husband can be hauled criminal

proceedings in a case registered for the offence punishable

under Sections 494 of the IPC for bigamy.

9. The afore narrated dates and events with regard

to the marriage between accused No.1 and complainant,

the complainant moving away from the matrimonial house

being not in dispute, are not reiterated. The complaint is

registered by the respondent-complainant alleging bigamy

against accused No.1-husband and all other petitioners,

who are other family members of accused No.1 and

accused No.11 since the entire issue springs from the

complaint it is germane to notice the complaint, in its

entirety.

"COMPLAINT FILED ON BEHALF OF THE COMPLAINANT UNDER SECTION 200 OF THE CODE OF CRIMINAL PROCEDURE

The complainant herein above respectfully submits as follows:-

1. The accused No.1 is the legally wedded husband of the complainant. Their marriage was performed in accordance with the Hindu customs prevailing in their caste on 05.05.2011 at Pattanaseragu village in front of the house of accused No.1 to 4. All the accused Nos. 5 to 16 were present in the said marriage ceremony. The complainant is hailing from a poor family and she was a student of 1st year B.Com., at the time of her marriage with the accused No.1. She jointed the accused No.1 in his house within 16 days of marriage and the marriage wad duly consummated and the couple lead a happy married life for a period of one year. But they were not blessed with children.

2. The accused No.2 is the father, accused No.3 is the mother and accused No.4 is the elder brother of accused No.1. Accused No.5 is the elder brother of accused No.2. Accused Nos. 6 & & are the cousins of accused No.1. Accused No.8 is the sister of accused No.3. Accused No.9 is the sister of accused No.2. Accused No.10,14 to 16 are caste men of the accused and also related to the accused 1 to 3. The accused No.11 is the second wife of the accused No.1 and accused Nos. 12 & 13 are the parents of accused No.11. Thus the accused Nos. 1 to 16 are thickly related to each other.

3. After one year of the complainant's marriage with accused No.1, the accused Nos. 2 & # the in-laws of the complainant started expressing their dissatisfaction about the complainant on the count that she did not bring dowry and that she is unable to work in the agricultural lands. The complainant was attending the entire house work and the accused No.3 the mother-in-law was used to find fault with each and every work done by the complainant and used to taunt and abuse the complainant even in vulgar language. The complainant was also attending the agricultural work and in the process, father-in-law of the complainant i.e., accused No.2 used to insult, humiliate and even abuse her in vulgar language openly in the presence of labours on the count that she is lazy and is not doing work at par with the said labours.

4. The accused Nos. 2 & 3 were making a comparison between the complainant and her co- sister Radha who is hailing from a well to do family and used to taunt her on the count that the complainant could not bring gold and dowry as she brought and were discriminating in allotment of domestic work and the said co-sister was never allowed to work in the fields. Knowing the entire ill- treatment given to the complainant, the accused

No.1 never opened his mouth in defence of the complainant. Despite the said ill-treatment and the harassment, the complainant tolerated the same thinking that she is hailing from a poor family and did not want to trouble her parents by reporting the events to them.

5. About two years after the marriage she had become pregnant and while she was carrying her second month the same ended in a miscarriage. Thereafter the complaint was found weak and was feeling uneasy. Despite the said ill-health of the complainant, the accused Nos.1 to 4 never cared to provide any treatment to the complainant. Finally when the father of the complainant visited her in the month of May 2013, he requested the accused Nos. 1 to 3 to get her treated as she is looking very weak.

6. Thereafter the complainant was taken to Dr. Sreenivas at Ballari and at the advice of the said doctor various clinical examinations were being conducted it was diagnosed that the complainant was suffering from Hypothyroidism and accordingly, she was treated. Thereafter under the guise of further treatment she was taken to Shimoga during the month of April 2014 by the accused No.1 and she was admitted in Manasa Nursing home wherein, after conducting various tests, she was advised to

continue the same treatment for thyroid problem. Hence she had regularly consumed the necessary medicine as per the advice of the doctors and thereafter she had fully recovered from her ill-health.

7. After discharge from the hospital at Shimoga the complainant was left in the house of her parents by the accused No.1 stating that she could take rest for a week and thereafter he would come and take her back. Thereafter the accused No.1 stopped contacting the complainant and did not attend her phone calls. Finally the complainant along with her father and other elders went to the house of the accused to join them. But the complainant was sent away from the house by accused No.4 and he threw the cloths of the complainant and went away by locking the house. The photos showing the said scene are herewith produced for kind perusal of this Honourable Court.

8. Thereafter the complainant and her father approached the police at Kurugodu and informed about the dispute and the police having had secured the presence of the accused 1,2 & 4, they undertook to take the complainant to their home within one month and thereafter the accused No.1 filed home within one month and thereafter the accused No.1 filed a case before the Honourable Family Court

seeking divorce on the ground of cruelty and ill- health of the complainant. Thereafter the complainant understood that the accused 1 to 4 are intentionally took her to Psychiatrists at Ballari and Shimoga and got her treated for thyroid problem with predetermined mind that they wanted to brand her as mad and get rid of her. Hence the accused No.1 was before the Honourable Family Court with the said petition for divorce on false and vexatious grounds.

9. The complainant reliably learnt that the accused No.1 to 4 were intending to divorce the innocent complainant and marry another woman from a well to do family by taking hefty dowry. Hence the complainant had seriously contested the said case in Mat. Case No.7 of 2015 with a counter claim for a decree of under section 9 of the Hindu Marriage Act. After due trial the Honourable Court was pleased to dismiss the petition of the accused No1 for divorce and decreed the counter claim of the complainant by its judgment and decree dated 30.11.2015. Hence the complainant tried to join the accused No.1 and sent one of his relatives to request the accused Nos. 1 to 4 in this behalf. Despite the said requests and the decree of the Honourable Family Court, the Respondent was not ready to receive the complainant to his residence.

10. Under the circumstances the complainant is physically and mentally in fit condition and not suffering from any problem. She is ready to join the accused No.1 unconditionally for leading future marital life. On the other hand the accused have been falsely blaming the complainant stating that she has been suffering with schizophrenia, only with an intention to harass her and get rid of.

11. It would be further relevant to submit that the accused No.1 approached the Honourable High Court of Karnataka, Dharwad in MFA No. 100202/2016(FC) as against the judgment and decree passed by the Honourable Family Court, Ballari in Mat. Case No.7 of 2015. The Honourable High Court was pleased to dismiss the said appeal upholding the judgment and decree of the trial court. Copy of the said judgment is herewith enclosed for kind perusal of this Honourable Court. Despite the said judgment of the Honourable High Court, since the accused No.1 has been evading to obey the decree of the trial court, the complainant has filed Execution Case No.9/2016 pending on the file of the Family Court, Ballari.

12. Under the circumstances, the complainant came to know that the accused are making efforts to get 2nd marriage done to the accused No.1 during the 1st week of January 2016. Hence she approached the

police at Kurugodu and submitted a petition which was numbered as D.P No.04/2015. The acknowledgement issued by the said police is herewith enclosed.

13. Thereafter the complainant came to know in the month of June 2017 that the accused No.1 married accused No.11 Chukka Bai and she was a pregnant through the accused No.1. Hence she has sought information from the Primary Health Centre, Orvai village about the pregnancy of accused No.11. Thus the Medical officer of the said PHC has issued a certificate stating that, Smt. Chukka Bai W/o. Thippeswamy C/o Kanki Chendrappa, has been confirmed as pregnant on 09.03.2017 as per his records. The certificate issued by the said Medical Officer dated 28.06.2017 is herewith produced.

14. After receiving the said certificate, the complainant being so confirmed of the fact that the accused No.1 married the accused No.11, started probing in to the facts pertaining to details of the said marriage. In the course of the said probe she came to know through Nagaraj Gouda of Shanavasapura village, E. Dodappa of Konchigere village and G. Veeresh of of Sindigere village, that the marriage between the accused Nos. 1 & 11 took place on 17.02.2016 in between 4-00 A.M. to 5-00 A.M. at Anjineya Swamy Temple situate in srenivas camp situate beside the Kurugodu, Kampli raod,

Near Kalkamba village in Ballari taluk. The said persons also informed the complainant that they were being invited to the said marriage by the accused No.12 they have attended the said marriage and that the said marriage was solemnized as per Hindu religious customs and traditions prevailing the community to which the couple belonged to. The said read with section Witnesses further informed the complainant that all the accused Nos. 2 to 10 and 12 to 16 were present in the said marriage ceremony. Further the said witnesses informed that they were not knowing the fact that the 1st accused was the husband of the complainant. They have also informed the complainant they are ready to depose the fact of the said marriage between the accused No.1 & 11 before the court or Police.

15. The accused Nos. 2 to 16 are being well aware of the fact of subsistence of marriage between the complainant and the accused No.1, have intentionally have abetted the accused No.1 to marry accused No.12. Thus the accused Nos. 1 to 16 have committed the offence punishable under section 494 read with section 109 & 114 of the Indian penal Code and the accused No.1 is living in adultery with accused No.11 and the other accused are being abetters, are liable for punishment under section 497 read with section 109 of the Indian

Penal Code. Hence this complaint against all the accused Nos.1 to 16.

16. All the accused are residents within the jurisdiction of Kurugodu police station and the offences are being committed by them at Srinivas camp and at Pattanaseragu villages and both the villages are being situate within the jurisdiction of Kurugodu Police station, this Honourable Court being the jurisdictional court the above complaint is filed before this Honourable Court.

17. Therefore, it is prayed that the Honourable Court be pleased to summon the above accused and punish them as per law, which would meet the ends of justice."

10. On perusal of the complaint what is to be noticed

the relationship of the petitioners with the complainant,

accused No.2 is the father, who is petitioner No.1, accused

No.3 is the mother, who is petitioner No.2, accused No.4 is

the elder brother of the husband, who is petitioner No.3,

accused Nos.6 and 7 are the cousins of accused No.1-

husband, who are petitioner Nos.5 and 6, accused Nos.8

and 9 are the petitioner Nos.7 and 8 are sisters of accused

No.3, accused No.9 is the sister of accused No.2, accused

No.10 is the stranger. Accused Nos.12 and 13 who are

petitioner Nos.10 and 11 are parents of accused No.11-

alleged 2nd wife. Accused Nos.14, 15 and 16 are again

strangers, who are petitioner Nos.12, 13 and 14.

11. The afore narrated relationships are ones that are

narrated in the complaint. In terms of the relationship so

narrated what becomes unmistakably is clear is that few of

them are strangers, father-in-law, mother-in-law and

family members of either accused No.1-husband or

accused No.11 alleged 2nd wife. Further narration in the

complaint as could be gathered from paragraph No.14 is

that the complainant comes to know through P.Ws.2, 3 and

4 that the accused No.1 has got married again on

17.02.2016 and the marriage was performed in the

presence of the present petitioners. It is on that ground the

complainant drags all the family members and strangers

into these proceedings.

12. A perusal of the complaint (supra) would further

indicate that the allegation that these petitioners were

present at the time of alleged 2nd marriage takes place on

17.02.2016 is again on the hearsay statements. The

complainant is not witness or privy to the said incident

neither witness who divulges such information are privy to

the said incident. In a case of bigamy the allegation is a

triangle, the husband, the 1st wife and the alleged 2nd wife.

This cannot be stretched to bring all other members of the

family or persons who attended the alleged 2nd marriage in

a case relating to bigamy, unless the complainant clearly

makes out an allegation that it is at the instance of the

relatives or members of the family or even the strangers

the 2nd marriage takes place otherwise other members of

the family cannot be dragged into the criminal proceedings

particularly in a case of bigamy.

13. The allegations are one of Sections 494, 497 read

with Sections 109 and 114 of IPC. Section 494 of IPC as

observed hereinabove, deals with bigamy between

husband, 1st wife and alleged 2nd wife. Section 109 of IPC

deals with abetment of crime. There is no evidence in the

complaint even that the petitioners are responsible or were

present at the time of alleged 2nd marriage taking place.

Therefore, ingredients of Section 107 or Section 109 of IPC

are not even met in the complaint. Section 114 of IPC

which depicts the presence of abettor when the offence is

committed is also not met.

14. On perusal at the complaint would indicate that

the entire complaint is against the husband that being so.,

it is germane to notice the judgment of this Court rendered

in the case of D.Radhamma and Others v. Gowramma,

reported in 2020 (2) AKR 638, wherein this Court has held

as follows :

"6. I have carefully and cautiously gone through the submissions made by the learned counsel appearing for the parties and perused the records. For the purpose of brevity, I quote Section 494 of IPC:

"494. 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 year, 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."

On close reading of the said Section, the husband or wife who got married during the subsistence of marriage constitutes as an offence but in order to make other persons liable, there must be some abetment or instigation to the second marriage. Mere consent of the persons present at the place of the alleged incident will not attract the Proviso of Section 494 of IPC and it does not necessary to constitute the abatement of such marriage. On close reading of the contents of complaint and other material, it clearly goes to show that except stating vaguely and behind her back at the instance and instigation of all the accused persons, no other specific allegations have been made as against the petitioners/accused and even though, it is contended by the learned counsel for the respondent/complainant that the accused persons have abused the complainant with filthy language, the trial Court has not taken the cognizance for the alleged offence. Under such facts and circumstances, I am of the considered opinion that the trial Court without application of mind and without looking into the provisions of law has erroneously taken the cognizance and the said order is capricious and it is not sustainable in law.

7. In that light, the petition is allowed and the order passed by the Court of Civil Judge and J.M.F.C., Jagaluru in C.C.No.630/2017 dated 20.09.2017 taking cognizance as against the petitioners/accused No.2 to 6 and 9 to 12 is set aside."

(Emphasis supplied)

15. In the light of the facts obtaining in the case at

hand as narrated hereinabove, the complaint and the

Judgment rendered by the co-ordinate bench of this Court,

this is a fit case for this court to exercise its jurisdiction

under Section 482 of Cr.P.C. and obliterate such

proceedings against the petitioners, failing which it would

result in miscarriage of justice.

16. For the aforesaid reasons, the following :

ORDER

(i) The criminal petition is allowed.

(ii) The proceedings in C.C.No.934/2018 on