Madhya Pradesh High Court
Naval Singh Maurya vs The State Of Madhya Pradesh on 21 June, 2022
Author: Gurpal Singh Ahluwalia
1
IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
HON'BLE SHRI JUSTICE GURPAL SINGH AHLUWALIA
ON THE 21st OF JUNE, 2022
MISCELLANEOUS CRIMINAL CASE NO. 25054 of 2022
Between:-
NABAL SINGH MORYA S/O
HARIVILAS MORYA, AGE : 31
YEARS, OCCUPATION :
GOVERNMENT SERVANT, R/O
VILLAGE KHERIDABARIYA,
POLICE STATION ANTARI, TAHSIL
DABRA (DISTRICT SHIVPURI),
(MADHYA PRADESH)
........APPLICANT
(BY SHRI ARUN KUMAR PATERIYA - ADVOCATE)
AND
THE STATE OF MADHYA PRADESH
THROUGH INCHARGE OFFICER,
POLICE STATION KOTWALI
(DISTRICT SHIVPURI) (MADHYA
PRADESH)
........RESPONDENT
(SHRI RAJEEV UPADHYAY - ADVOCATE FOR STATE AND
SHRI I.S. ASTHNA - ADVOCATE FOR COMPLAINANT)
----------------------------------------------------------------------------------------
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This application coming on for hearing this day, the Court passed
the following:
ORDER
Case diary is available.
This fifth application under Section 439 of Cr.P.C. has been filed
for grant of bail. Fourth application was dismissed as withdrawn by order
dated 25.03.2022 passed in M.Cr.C. No.13375/2022.
The applicant has been arrested on 05.03.2021 in connection with
Crime No.105/2021 registered at Police Station Kotwali District Shivpuri
for offence under Sections 376, 323, 506 of IPC.
It is submitted by the counsel for the applicant that although
previous bail applications of the applicant have already been dismissed
on merits, but it is clear that the prosecutrix had filed first appeal against
a decree of divorce and, therefore, in view of the statutory provisions of
Section 15 of the Hindu Marriage Act, she was not entitled to get re-
married. In spite of that, if she entered into a relationship with the
applicant, then it cannot be said that any false promise of marriage was
made by the applicant. Furthermore, the prosecutrix was held guilty of
committing murder of her step son and since her first husband did not
enter into compromise, therefore, various false cases were got registered
against him and in all those cases, the husband of the prosecutrix namely
Raju Jatav was acquitted. Thus, it is clear that the prosecutrix is of
vindictive nature. She is major and since she was under legal
disqualification to remarry during pendency of First Appeal
No.1904/2019 which was ultimately dismissed on merits, it is clear that
no case of taking her consent by misconception of fact is made out.
Per contra, the application is vehemently opposed by the counsel
for the State as well as counsel for the complainant. It is submitted that
merely because the prosecutrix has been convicted on the allegation of
killing her own step son, will not invite any legal disqualification of
making any FIR if any offence is committed with her.
Heard the learned counsel for the parties.
So far as the question of legal disqualification in view of Section
15 of the Hindu Marriage Act is concerned, it is well established
principle of law that even if the second marriage is performed without
waiting the outcome of the appeal, then still the second marriage cannot
be held to be void. The Supreme Court in the case of Anurag Mittal Vs.
Shaily Mishra Mittal reported in (2018) 9 SCC 691 has held as under:
"S.A. BOBDE, J. (supplementing)-- I am in
agreement with the view taken by Nageswara Rao, J. but
it is necessary to state how the question before us has
already been settled by the decision in Lila
Gupta v. Laxmi Narain [Lila Gupta v. Laxmi Narain,
(1978) 3 SCC 258] . Even when the words of the proviso
were found to be prohibitory in clear negative terms --
"it shall not be lawful", etc., this Court held that the
incapacity to marry imposed by the proviso did not lead
to an inference of nullity, vide para 9 of Lila Gupta [Lila
Gupta v. Laxmi Narain, (1978) 3 SCC 258] . It is all the
more difficult to infer nullity when there is no
prohibition; where there are no negative words but on
the other hand positive words like "it shall be lawful".
Assuming that a marriage contracted before it became
lawful to do so was unlawful and the words create a
disability, it is not possible to infer a nullity or voidness
vide paras 9 and 10 of Lila Gupta case [Lila
Gupta v. Laxmi Narain, (1978) 3 SCC 258] . The Court
must have regard to the consequences of such an
interpretation on children who might have been
conceived or born during the period of disability."
The Supreme Court in the case of Krishnaveni Rai Vs. Pankaj
Rai & another by judgment dated 19.02.2020 passed in Criminal
Appeal No.321/2020 has held as under:-
"30. Contravention of Sections 5(ii) or 5(iii) of the
Hindu marriage Act does not render the marriage null
and void. In such a case, the marriage is voidable at the
option of the underaged party to the marriage or the party
who could not have validly consented to the marriage."
Thus, it is clear that even if second marriage is performed during
pendency of first appeal, then the said marriage cannot be said to be void.
Furthermore, the prosecutrix is said to have supported the prosecution
case.
At this stage, it is submitted by the counsel for the applicant that
the Trial Court may be directed to expedite the disposal of the trial as the
applicant is in jail from 05.03.2022.
So far as the prayer for early disposal of the trial is concerned, the
Supreme Court in the case of M. Gopalakrishnan and others vs.
Pasumpon Muthuramalingan and another by judgment dated
11.03.2022 passed in SLP (Crl.) Diary No.30839/2021 has held that the
High Court should not give direction of expediting the hearing in a
cursory manner thereby disturbing the calendar of the Trial Court.
Considering the totality of the facts and circumstances of the case,
this Court is of the considered opinion that no case is made out for taking
contrary view in the matter.
The application fails and is hereby dismissed.
(G.S. AHLUWALIA)
JUDGE
Abhi
ABHISHEK
CHATURVEDI
2022.06.23
16:06:14
+05'30'
