Madras High Court
Sivakumar vs Yasodha Sivakumar on 12 April, 2022
1
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Dated:12/04/2022
CORAM:
THE HON'BLE MR JUSTICE G.ILANGOVAN
Crl.OP(MD)No.13210 of 2019
and
Crl.MP(MD)No.8108 of 2019
Sivakumar : Petitioner/A1
Vs.
Yasodha Sivakumar : Respondent/
De-facto complainant
Prayer: Criminal Original Petition has been filed
under section 482 of the Criminal Procedure Code, to call
for the records pertaining to the case in CC No.139 of
2019 on the file of the Judicial Magistrate, Tirupattur,
Sivagangai District and quash the same.
For Petitioner : Mr.N.Prahalad Ravi
For Respondent : Mr.Susanna Prabhu
https://www.mhc.tn.gov.in/judis
2
O R D E R
This petition has been filed seeking quashment of
case in CC No.139 of 2019 on the file of the Judicial
Magistrate Tirupattur, Sivagangai District.
2.The 2nd respondent has lodged a complainant with
the following allegations:-
The complainant is aged about 58 years. The 1st
accused is aged about 72 years. A2 is aged about 50
years. The marriage between the de-facto complainant and
A1 was performed, on 01/09/1977. After the marriage, they
lived together as husband and wife in the ancestral house
situated at Theni and a female child was also born, on
04/09/2008. During that time, A1 used to come with
drunken mood and beat her. Even after the birth of the
female child, it continued. Sometime in 1987, she was
severally beaten and she was forced out of the
matrimonial home and thereafter, she is living in her
parental home from 2009 at Chennai. Her belongings, such
as gold and silver articles, left in the matrimonial
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home. Sometime in 1992, A1 married the second accused
without the knowledge of the complainant. It came to her
knowledge only after several years. A2 is the distant
relative of A1. A2 also knew about the factum of
marriage. The parents of the accused also attended the
marriage between A1 and A2, on 01/09/1997. At that time,
the complainant and her parents, requested A1 to return
the jewels and silver articles. But that was not
complied. So, the accused have committed the offence
under section 494 IPC r/w 109 IPC.
3.Seeking quashment of the same, the petitioner/A1
has preferred this petition.
4.Heard both sides.
5.It is very unfortunate case, not only for the
petitioner, but also for the respondent. The marriage
between the petitioner and the complainant took place, on
01/09/1977. As mentioned above, within a year, a female
child was born to them. The dispute started after that
and now we are in the 44th year of marriage. So far the
dispute has not resolved and every endeavour was also
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made by this court to settle the issue not with regard to
bigamous, but with regard to easing the desperate
circumstances of the wife and the only daughter.
6.When the matter was heard by this court, it was
argued by the learned counsel appearing for the
respondent in a persuasive manner that absolutely the
respondent and her daughter are penniless and the
daughter is now 44 years and remains unmarried. Finding
that it is the duty of the petitioner to make every
possible endeavour to arrange the marriage and maintain
her, this matter was referred to mediation, but it could
not be settled for one reason or other.
7.At the time of argument, the learned counsel
appearing for the respondent submitted that the
petitioner wants to settle the respondent for a meagre
amount of maintenance, which is not accepted by her and
for the past 44 years, the petitioner has not taken any
care of the respondent and the child. But the learned
counsel appearing for the petitioner would submit that as
a dutiful father, he took possible endeavor to get the
child married. But whenever alliance is suggested, the
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respondent and her daughter was in the habit of rejecting
the proposal and that was the reason for the present
situation.
8.Now whatever it may be, it is the duty of the
petitioner to maintain the respondent and the child and
get her married properly. No excuse is available morally
or legally to escape from that liability. Even at the
time of final argument, this court asked the petitioner,
even now time is available to resolve the issue of
maintenance, settlement etc. But the very same reason was
given by the learned counsel appearing for the petitioner
that it has gone out of his hands. So the matter was
heard on merits.
9.When the matter was heard by my predecessor, there
is an observation on 16/10/2020 to the effect that the
parties have parted ways four decades ago; The petitioner
is aged about 72 years and the bigamous marriage is also
said to have taken place some 28 years ago. It was argued
that it is nothing, but abuse of process of the court.
On that ground, prima facie ground was found to be made
out. On that ground, further proceedings have been stayed
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by this court, even though the original petition was
filed on 17th September 2019. It was submitted that the
criminal case was filed only when a suit for partition
was filed by the daughter. So the learned counsel
appearing for the petitioner would submit that this case
comes under the 7th category as set out by the Hon'ble
Supreme Court in Bhajan Lal's case, which would run
thus:-.
“(a) where the allegations made in the
First Information Report or the complaint,
even if they are taken at their face value
and accepted in their entirety do not prima
facie constitute any offence or make out a
case against the accused;
(b) where the allegations in the First
Information Report and other materials, if
any, accompanying the F.I.R. do not
disclose a cognizable offence, justifying
an investigation by police officers
under Section 156(1) of the Code except
under an order of a Magistrate within the
purview of Section 155(2) of the Code;
(c) where the uncontroverted
allegations made in the FIR or 'complaint
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and the evidence collected in support of
the same do not disclose the commission of
any offence and make out a case against the
accused;
(d) where the allegations in the FIR
do not constitute a cognizable offence but
constitute only a non-cognizable offence,
no investigation is permitted by a police
officer without an order of a Magistrate as
contemplated under Section 155(2) of the
Code;
(e) where the allegations made in the
FIR or complaint are so absurd and
inherently improbable on the basis of which
no prudent person can ever reach a just
conclusion that there is sufficient ground
for proceeding against the accused;
(f) where there is an express legal
bar engrafted in any of the provisions of
the Code or the concerned Act (under which
a criminal proceeding is instituted) to the
institution and continuance of the
proceedings and/or where there is a
specific provision in the Code or the
concerned Act, providing efficacious
redress for the grievance of the aggrieved
party;
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(g) where a criminal proceeding is
manifestly attended with mala fide and/or
where the proceeding is maliciously
instituted with an ulterior motive for
wreaking vengeance on the accused and with
a view to spite him due to private and
personal grudge.”
10.In reply to the argument of delay, the learned
counsel appearing for the respondent would submit that
the factum of the second marriage was brought to his
notice only when the written statement was filed by the
petitioners in O.S.No.47 of 2017. That suit was filed by
the daughter of the parties by name Arthi for partition
of the half share, rendition of accounts and permanent
injunction etc. That plaint was verified on 13/07/2017.
Written statement was verified, on 18/01/2018. So
according to the respondent, only in the written
statement, the petitioner has stated that he married one
Parimala in 1992 and the factum of marriage was also
known to the respondent and there was no objection on the
side of the respondent at the time, since the respondent
left the matrimonial home in 1987, only after a lapse of
five years, the second marriage was performed. So
according to the respondent, immediately the private
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complaint was filed on 12/09/2018. So after that, this
petition has been filed in 2019 and has been kept pending
all these years without any conclusion. So according to
her, no delay can be attributed to the respondent and on
the ground of delay, the illegality committed by the
petitioner should not be permitted to go unpunished.
11.Now there is a clear admission on the part of the
petitioner to the effect that he married the above said
Parimala, after the alleged desertion by the respondent.
But he ought to have pursued by legal process. But that
was not done. So prima facie, it is seen that it is
noting, but bigamous marriage.
12.The fact remains that as mentioned earlier, the
respondent remained silent for about 30 years. Now the
learned counsel appearing for the respondent would submit
that she was under the impression that there was no
marriage (2nd marriage) with the above said Parimala.
Such a sort of contention cannot be accepted for the
simple reason that the children were born to the
petitioner and the above said Parimala and now it has
been informed to the court that they also settled in
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life, after the marriage. According to the petitioner,
the delay and the passive act of silence will disentitle
the respondent to initiate the criminal proceedings.
13.The learned counsel appearing for the petitioner
would straightway rely upon the judgment of the Punjab
and Haryana High court in the case of Gurmail Kaur and
others Vs. Gurmail Singh (Criminal Misc No.36884 of
2014), dated 14/11/2014, wherein it has been observed
that even though mere delay cannot be the ground for
quashment of the criminal proceedings, but when there is
gross and long delay of years, that can be the ground for
quashing the criminal proceedings.
14.Only in response to this argument, the learned
counsel appearing for the respondent has submitted that
only in 2018, the 2nd marriage was brought to her notice.
So the learned counsel appearing for the respondent would
rely upon the judgment of the Hon'ble Supreme Court in
the case of Chand Dhawan Vs. Jawahar Lal and others (1992
AIR 1379) for the purpose of argument that the inherent
powers of this court cannot be invoked, when serious
allegations are made in the complaint with regard to the
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performance of the second marriage. So according to her,
in the light of the admission made by the petitioner that
he performed the second marriage even during the
subsistence of the first marriage, no interference is
required at the instance of this court. It is also
pointed out that the documents, which are proposed to
rely on by the petitioner cannot be taken into account at
this stage, since those factors are to be proved through
proper evidence.
15.No doubt, the disputed question with regard to
those aspects can be gone into only at the time of trial.
But here, as mentioned earlier, there was a long delay of
45 years in prosecuting the petitioner. Even though, the
crime will not die.
16.The learned counsel appearing for the petitioner
in response to the argument would rely upon the judgment
of this court in the case of J.Gnanakumar Vs. V.P.Rajan
and three others (Crl.OP(MD)Nos.4073 of 2009 and 5918 and
5942 of 2009, dated 20/08/2013), wherein similar
situation arose, there was desertion on the part of the
wife for about 37 years prior to the complaint. Noting
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that the desertion on the part of the wife for several
decades, the above said private complaint was quashed by
this court. But the factual aspects are entirely
different. Only for the limited purpose of showing the
cause of delay, the judgment has been cited.
17.In the counter, the respondent has stated that
she was under the wrong impression that the petitioner
has not married the Parimala and as per the caste
customs, the above said Parimala was living with this
petitioner. But I am unable to agree this line of
submission.
17.As mentioned above, three children were born to
the above said Parimala and the petitioner and they were
settled in life. At this length of time, it is nothing,
but mala fide exercise of criminal prosecution. Now the
petitioner is aged about 70 years and the respondent is
aged 58 years, the continuation of the criminal
proceedings against the petitioner will amount nothing,
but abuse of process of court and law. So, as settled by
the Hon'ble Supreme Court in Bajan Lal's case, for the
reasons stated above, this petition is liable to be
allowed.
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18.In the result, this criminal original petition is
allowed. The impugned CC No.139 of 2019 on the file of
the Judicial Magistrate Tirupattur, Sivagangai District
is quashed. Consequently, connected Miscellaneous
Petitions are closed.
12/04/2022
Index:Yes/No
Internet:Yes/No
er
Note :
In view of the present
lock down owing to
COVID-19 pandemic, a web
copy of the order may be
utilized for official
purposes, but, ensuring
that the copy of the
order that is presented
is the correct copy,
shall be the
responsibility of the
advocate/litigant
concerned.
https://www.mhc.tn.gov.in/judis
G.ILANGOVAN, J
er
To,
The Judicial Magistrate,
Tirupattur, Sivagangai District.
Crl.OP(MD)No.13210 of 2019
12.04.2022
https://www.mhc.tn.gov.in/judis
