July Mary Thomas vs Ajith Abraham
2021 Latest Caselaw 3511 Ker

               IN THE HIGH COURT OF KERALA AT ERNAKULAM

                               PRESENT

                THE HONOURABLE MR. JUSTICE P.SOMARAJAN

     MONDAY, THE 01ST DAY OF FEBRUARY 2021 / 12TH MAGHA,1942

                      Crl.MC.No.4131 OF 2016(F)

 AGAINST THE ORDER/JUDGMENT IN CC 170/2016 OF JUDICIAL MAGISTRATE
                    OF FIRST CLASS ,THIRUVALLA


PETITIONERS:

      1        JULY MARY THOMAS
               AGED 35 YEARS, D/O K.P. THOMAS,
               KAVUMKOTTETHU HOUSE,
               NELLICKAMON. PO., RANNI TALUK,
               PATHANAMTHITTA DISTRICT, PIN-689680.

      2        K.P. THOMAS
               AGED 63 YEARS, KAVUMKOTTETHU HOUSE,
               NELLICKAMON. PO., RANNI TALUK,
               PATHANAMTHITTA DISTRICT, PIN-689680.

      3        ANNAMMA THOMAS
               AGED 60 YEARS,W/O. K.P. THOMAS,
               KAVUMKOTTETHU HOUSE,
               NELLICKAMON. PO., RANNI TALUK,
               PATHANAMTHITTA DISTRICT, PIN-689680.

               BY ADV. SRI.V.SETHUNATH

RESPONDENTS/COMPLAINANT:

      1        AJITH ABRAHAM
               AGED 38 YEARS, S/O ABRAHAM, BETHEL BHAVAN,
               NEAR VETENARY HOSPITAL,PALIAKKARA,
               THIRUVALLA,PATHANAMTHITTA DISTRICT, PIN.689101.

      2        SUB INSPECTOR OF POLICE
               THIRUVALLA, PIN.682031.

      3        STATE OF KERALA
               RERESENTED BY THE PUBLIC PROSECUTOR,
               HIGH COURT OF KERALA, ERNAKULAM, PIN-682031.

               R1 BY ADV. SRI.T.P.PRADEEP
               R1 BY ADV. SRI.P.K.SATHEES KUMAR
               R2 & R3 BY ADV. SRI. E.C. BINEESH, PUBLIC PROSECUTOR

     THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD           ON
01.02.2021, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
 Crl.MC.No.4131 OF 2016(F)

                                     2



                                  ORDER

An attempt to extend criminal liability

under Section 495 IPC against the wife,

father-in-law and mother-in-law by taking

cognizance on a private complaint at the

instance of husband brought under challenge.

Cognizance was taken under Section 495 IPC on

the ground that earlier marriage was suppressed

and concealed from the notice of the

husband/complainant.

2. In order to attract the offence under

Section 495 IPC, there should be a concealment

of earlier marriage coupled with commission of

offence punishable under Section 494 IPC. In

the absence of an offence under Section 494

IPC, no criminal liability can be fastened

against any person for the aggravated offence

under Section 495 IPC. In other words, in

order to attract Section 495 IPC, the

commission of offence under Section 494 IPC is Crl.MC.No.4131 OF 2016(F)

a condition precedent, without which, no

criminal liability can be fastened for the

aggravated offence under Section 495 IPC.

3. The accused No.1, the wife admittedly had

undergone an earlier marriage abroad and it was

subsequently divorced under a foreign decree.

It was submitted that the above said decree of

divorce would not bind upon the parties in view

of Section 44 A CPC and as such, there is no

valid divorce of the marriage solemnized. The

foreign decree of divorce cannot be accepted in

view of Section 44 A CPC and hence the second

marriage can only be one solemnized during the

subsistence of earlier marriage and it would

attract the aggravated offence under Section 495

IPC, it was submitted.

4. Section 44 A CPC would come into play

only with respect to implementation or execution

of a foreign decree or award. There will be

hardly any application of Section 44 A CPC when

nothing is left out to be executed or implemented Crl.MC.No.4131 OF 2016(F)

under the foreign decree or award. In the

matter of a decree of divorce, unless the same is

coupled with other reliefs to be executed or

implemented, the same cannot be brought under the

purview of Section 44 A CPC. Since the earlier

marriage solemnized abroad was dissolved by way

of decree of divorce (foreign decree), the

solemnization of second marriage will not attract

the minor offence under Section 494 IPC and as

such, the aggravated form of offence under

Section 495 IPC will not stand attracted.

Hence, the private complaint and the cognizance

taken is hereby quashed.

Crl.M.C. is allowed accordingly.

Sd/-

P.SOMARAJAN JUDGE SPV Crl.MC.No.4131 OF 2016(F)

APPENDIX PETITIONERS' EXHIBITS:

ANNEXURE-1 THE TRUE COPY OF THE COMPLAINT FILED BY THE 1ST RESPONDENT/COMPLAINANT

ANNEXURE-2 CERTIFICATED COPY OF THE REPORT FILED BY THE 2ND RESPONDENT BEFORE THE JFMC, THIRUVALLA DATED 17/8/2015

ANNEXURE-3 CERTIFIED COPY OF THE ORDER OF THE JFMC - THIRUVALLA ISSUING PROCESS

ANNEXURE-4 THE TRUE COPY OF THE MARRIAGE CERTIFICATE ISSUED BY THE MARRIAGE OFFICER DATED 23-7-2007

ANNEXURE-5 THE TRUE COPY OF THE FINAL DECREE OF DIVORCE ISSUED BY THE JUDICIAL DISTRICT COURT, HIDALGO COUNTY TEXAS, IN USA

RESPONDENTS' EXHIBITS: NIL

//TRUE COPY//

PA TO JUDGE