Madras High Court
Kameela vs Metrilada on 25 March, 2022
Crl.O.P.(MD)No.18549 of 2018
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED:25/03/2022
CORAM:
THE HON'BLE MR JUSTICE G.ILANGOVAN
Crl.O.P.(MD)No.18549 of 2018
and
Crl.MP(MD)No.8302 of 2018
1.Kameela
2.Sivaraman Nadar : Petitioners/A2 to A3
Vs.
Metrilada : Respondent/Complainant
Prayer: Criminal Original Petition is filed under
Section 482 Cr.P.C., to call for the records in CC No.178
of 2013 on the file of the Judicial Magistrate No.II,
Kuzhithurai, Kanyakumari District and quash the same.
For Petitioners : Mr.R.Murugan
For Respondent : Mr.R.Ilayaraja
O R D E R
This criminal original petition is filed seeking
quashment of the case in CC No.178 of 2013 on the file of
the Judicial Magistrate No.II, Kuzhithurai, Kanniyakumari
District.
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Crl.O.P.(MD)No.18549 of 2018
2.The case of the prosecution in brief:-
It is a private complaint. The marriage between the
de-facto complainant, who is the respondent herein and the
first accused was performed on 07/02/2000 as per the
Christian Customary Rites. At the time of marriage, the
respondent was provided with sufficient sridhana, jewels,
household articles, etc. At the time of marriage the
respondent was undergoing graduation in Muslim Arts
College, Thiruvithancode, Kanyakumari. After the marriage,
she was living in the matrimonial home. In that house, A2
to A5 were also living. Later, the accused persons started
ill-treating the respondent stating that she is not fit for
matrimonial life and procreation of child. They also
harassed the respondent stating that they are arranging
second marriage to A1 for getting more dowry. She was
driven out of the house in the last month of 2010.
3.Now on 02/10/2012, A2 to A5 have arranged marriage
for A1 with A6 as per the Hindu Customary rites. So
conducted marriage as per the Hindu customary rites. A2 to
A5 distributed invitation to the relatives and the
villagers. Even though, it was objected by the respondent
and her family members, the marriage was performed. The
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Crl.O.P.(MD)No.18549 of 2018
second marriage was also registered, on 29/10/2012. So
with these allegations, the respondent filed a private
complaint before the trial court, which was taken on file
in CCNo.178 of 2013by the Judicial Magistrate No.3,
Karaikudi.
4.Seeking quashment of the same, A2 and A3 have
preferred this quash petition mainly on the ground that
even as per the allegation made by the respondent, the
alleged second marriage, which was alleged to have been
performed between A1 and the 6th accused under the Hindu
customary rites. But the parties belongs to Christian
community. The marriage alleged is a void marriage. So,
the question of second marriage does not arise and any of
the ingredients under section 494 r/w 34 of IPC is
attracted. The second contention is that only bald
allegations have been made against these petitioners.
5.Heard both sides.
6.During the course of argument, it was brought to
notice of this court that the first accused died. So the
offence against him abated and the co-accused namely
Catharin Sara and Albert Rabara, who were arrayed as A4 and
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Crl.O.P.(MD)No.18549 of 2018
A5 filed Crl.OP(MD)No.17521 of 2014 before this court and
that was allowed, on 20/09/2019. The observation made by
this court in the above said petition is relevant for our
discussion now. Finding that prima facie the husband of the
respondent was no more. For the purpose of purchasing
peace, on the basis of the above said case, an offer has
been made to the effect that they will provide Rs.
1,00,000/- to the respondent. That offer was also accepted
by this court and directed to hand over the Demand Draft
within a week from the date of receipt of the copy of the
order and an undertaking affidavit was required to be
filed. In respect of the land, that was gifted by the
father of the respondent and the father-in-law and in
favour of the respondent herein. It was also raised that
the details with regard to the land must be furnished by
the respondent to the learned counsel appearing for the
petitioners. So with the above said observation, the
proceedings against A4 and A5 have been quashed.
7.It is also observed that so far as the other accused
persons namely A2, A3 and A6 are concerned, they have not
filed any quash petition. So the trial court was directed
to complete the trial process within a period of six months
from the date of receipt of a copy of the order. It is seen
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Crl.O.P.(MD)No.18549 of 2018
that already an offer was made by the co-accused in favour
of the respondent.
8.Whether the amount was received or not is not clear
on record. During the course of argument, it was pointed
out by the learned counsel appearing for the respondent
that the jewels belongs to the respondent is in the hands
of the petitioners and if the jewels is returned back, she
is ready for compromise. So on that ground, the matter was
adjourned to report the compromise. It was submitted at the
time of final hearing that no compromise was reached
between the parties. The petitioners stated that they have
not in the custody of the above said jewels. Because,
after the marriage, the husband and wife were residing
separately and the petitioners never lived with them.
9.It is further submitted that in respect of the house
property, which was given by the father-in-law of the
respondent in favour of her and her husband, a portion may
be handed over to her. But the learned counsel appearing
for the petitioners would submit that in the property,
which was gifted by the father-in-law, the mother of A1 is
also entitled to a share. More-over, the respondent is also
having separate house. But this fact was objected by the
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Crl.O.P.(MD)No.18549 of 2018
learned counsel appearing for the respondent stating that
only landed property was gifted by the father and no
properties were available to her. But whatever, it may be
now the parties are not coming to the terms.
10.So the learned counsel counsel for the petitioners
has submitted that matter can be disposed on merit.
According to the learned counsel appearing for the
petitioners, only bald allegations have been made against
the petitioners. Since A1 also died, the cause of action
also does not survive. Since the second marriage is a void
one, section 494 IPC is not attracted against the
petitioners. So for the above said argument, he relied upon
the judgment of the Hon'ble Supreme court, reported in the
case of Bhaurao Shankar Lokhande and another Vs. State of
Maharashtra and another (1965)AIR (SC) 1564, wherein it has
been held that the second marriage, which is alleged must
be valid marriage. Suppose the second marriage is not valid
one, the offence is not attracted. The relevant observation
may be extracted hereunder:-
“3.Section 494 I.P.C. reads :
"Whoever, having a husband or wife
living, marries in any case in which such
marriage is void by reason of its taking
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Crl.O.P.(MD)No.18549 of 2018
place during the life of such husband or
wife, shall be punished with imprisonment
of either descrip- tion for a term which
may extend to seven years, and shall also
be liable to fine."
Prima facie, the expression 'whoever.... marries'
must mean 'whoever marries-validly' or 'whoever....
marries and whose marriage is a valid one'. If the
marriage is not a valid one, according to the law
applicable to the parties, no question of its being void
by reason of its taking place during the life of the
husband or wife of the person marrying arises. If the
marriage is not a valid marriage, it is no marriage in the
eye of law. The bare fact of a man and a woman living
as husband and wife does not, at any rate, normally
give them the status of husband and wife even though
they may hold themselves out before society as
husband and wife and the society treats them as
husband and wife.”
11.No doubt, as observed by the Hon'ble Supreme court,
the second marriage must be also be valid one. The learned
counsel appearing for the respondent would submit that
since the parties belong to Christian community and
subsequent marriage has been performed by following the
Hindu customary rites, it is not valid under law. But there
is a specific allegation in the complaint that the marriage
was performed by following Hindu rites. Whether there was
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Crl.O.P.(MD)No.18549 of 2018
any conversion on the part of A1 before performing the
disputed marriage is the question of fact, which got to be
decided during the course of trial. The word 'jGtp”
requires proper interpretation, which involves the factual
consideration.
12.In the light of the above facts, I am of the
considered view that since the factual issue is also
involved, it is not proper on the part of this court to
quash the criminal proceedings.
13.In the result, this criminal original petition is
dismissed. Considering the fact that it is the matter of
the year 2013 and it is dragged on for more than 8 years,
without any progress, there shall be a direction to the
trial court to comply the order that has been passed by
this court in Crl.OP(MD)No.17521 of 2014. Considering the
age of the petitioners, their personal appearance is
dispensed with before the trial court, within 15 days from
the date of receipt of a copy of this order, the
petitioners must appear before the trial court and file an
undertaking affidavit that they will appear as and when
required by the court and they must ensure that they are
properly represented by an Advocate. Consequently,
connected Miscellaneous Petition is closed.
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Crl.O.P.(MD)No.18549 of 2018
25.03.2022
Internet:Yes/No
Index: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.
To,
The Judicial Magistrate No.II,
Kuzhithurai,
Kanniyakumari District.
G.ILANGOVAN,J.,
er
https://www.mhc.tn.gov.in/judis
Crl.O.P.(MD)No.18549 of 2018
Crl.O.P.(MD)No.18549 of 2018
25/03/2022
https://www.mhc.tn.gov.in/judis
