Smt Pavithra vs Kavitha M K
2022 Latest Caselaw 5058 Kant

Citation : 2022 Latest Caselaw 5058 Kant
Judgement Date : 21 March, 2022

Karnataka High Court

Smt Pavithra vs Kavitha M K on 21 March, 2022

Bench: K.Natarajan

                            1


      IN THE HIGH COURT OF KARNATAKA AT BENGALURU

          DATED THIS THE 21ST DAY OF MARCH, 2022

                          BEFORE

           THE HON'BLE MR. JUSTICE K.NATARAJAN

            CRIMINAL PETITION No.5334 OF 2017

BETWEEN

SMT PAVITHRA
W/O SANTOSH KUMBAR,
AGED 24 YEARS,
RESIDENT OF WARD NO.7,
HUCHANAGOUDRA OANI,
BETAGERI TALUK,
GADAG DISTRICT.                           ... PETITIONER

(BY SRI N G PHADKE, ADVOCATE AND
 SRI VIKRAM PHADKE, ADVOCATE)

AND

KAVITHA M K
D/O HANUMANT HAPPA
AGED 25 YEARS,
RESIDENT OF LEFT SIDE OF 5TH CROSS,
HOSAMANE,
BHADRAVATHI
SHIVAMOGGA DISTRICT.
                                          ... RESPONDENT
(BY SRI UMESH MOOLIMANI, ADVOCATE FOR
 SRI S V PRAKASH, ADVOCATE (VIDEO CONFERENCE))

      THIS CRIMINAL PETITION IS FILED UNDER SECTION 482
OF CR.P.C PRAYING TO QUASH THE ENTIRE PROCEEDINGS IN
C.C.NO.169/2016 PENDING ON THE FILE OF III ADDITIONAL
CIVIL JUDGE AND J.M.F.C., BHADRAVATHI IN PCR NO.382/2015
FOR THE OFFENCES PUNISHABLE UNDER SECTIONS 420 AND
494 OF IPC.
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     THIS CRIMINAL PETITION COMING ON FOR ADMISSION
THROUGH VIDEO CONFERENCING THIS DAY, THE COURT MADE
THE FOLLOWING:
                          ORDER

This petition is filed by the petitioner-accused No.2

under Section 482 of Cr.P.C. for quashing the criminal

proceedings in C.C.No.169/2016 pending on the file of III

Additional Civil Judge and JMFC, Bhadravathi for the

offences punishable under Sections 494 and 420 of IPC

having taken cognizance based upon the private complaint

filed by respondent herein.

2. Heard learned counsel for the petitioner and

learned counsel for the respondent.

3. The case of the petitioner is that the

complainant married accused No.1-Santhosh Kumbar on

24.07.2013 and had a female child aged about 1 year 2

months. Subsequently, accused Nos.1 and 2 said to have

married on 04.06.2015 and registered their marriage in

Sub-Registrar Office, Gadag on 12.06.2015 knowingly,

about the marriage of the complainant along with accused

No.1. Therefore, the private complaint came to be filed

against accused Nos.1 and 2 in P.C.R.No.382/2015.

Subsequently, the sworn statement of the complainant and

other witnesses have been recorded and the learned

Magistrate took cognizance of the said offences against

accused Nos.1 and 2 which is under challenge.

4. Learned counsel for the petitioner strenuously

contended that the offence under Section 494 of IPC

attracts only against accused No.1 who is the husband of

the complainant and not against this petitioner who is said

to be second wife. Of course, she is not aware about the

first marriage. She has filed a civil suit which came to be

dismissed and the appeal is also pending before this Court.

Hence prayed for quashing the criminal proceedings

against the petitioner. The learned counsel has further

contended that even in the sworn statement of the

complainant, she has not stated anything about this

petitioner with regard to taking action, knowledge of this

petitioner for having married accused No.1 and cheating

the complainant.

5. Per contra, learned counsel for the respondent

has objected the petition and contended that the offence

under Section 420 of IPC would attract against this

petitioner. This petitioner has filed civil suit for declaring

herself as the wife of accused No.1 which came to be

dismissed. Such being the case, she has to face the trial

and she has to take the defence in trial and the court

cannot quash the same in preliminary stage. Hence,

prayed for dismissing the petition.

6. Having heard the arguments and on perusal of

the records, the dispute in respect of the fact that whether

the petitioner is legal wedded wife which has been decided

by the Civil Court in O.S.No.10/2015 and the judgment

was delivered by dismissing the suit filed by this petitioner

declaring that the complainant is the legally wedded wife

and the petitioner is not a legally wedded wife vide

judgment dated 19.08.2017. Of course an appeal is filed

before this Court and pending in M.F.A.No.103352/2017 of

Dharwad Bench. Once, the Civil Court having competent

jurisdiction issued a finding in a civil suit of declaration

that is binding on the criminal court, that means the court

refused to declare the petitioner as the wife of accused

No.1. That means, the complainant said to be declared as

wife of accused No.1. However, the provision of Section

494 of IPC reads as under:

"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 years, and shall also be liable to fine".

On bare reading of the provision of Section 494 of

IPC which says that the punishment shall be provided only

against the husband or wife who got second marriage by

suppressing the previous marriage. Here in this case, the

allegation against accused No.1 is that he has married this

petitioner in the year 2015 by suppressing the earlier

marriage which was held in the year 2013. Though the

complainant has stated that accused Nos.1 and 2 in spite

of having knowledge about the previous marriage, they

married once again in the year 2015, but no such

document produced by her in the sworn statement or while

filing the complaint. Of course, accused No.1 who is having