Sri Swapan Chakma vs The State Of Tripura
2022 Latest Caselaw 765 Tri

                                  HIGH COURT OF TRIPURA
                                        AGARTALA

                                      Crl.Petn 26 of 2022

   Sri Swapan Chakma
   S/o Sri Jyotilal Chakama
   R/o Bhanupur, PS: Nutan Bazar,
   District: Gomati, Tripura
                                                                             ----Petitioner(s)
                                              Versus

1. The State of Tripura
   Represented by the Principal Secretary to the Government of Tripura,
   Department of Home, Having its office at New Secretariat Complex,
   Gorkhabasti, PO: Kunjaban, PS: NCC, Sub-Division: Sadar,
   District: West Tripura, PIN: 799010.

2. Smt. Lipi Chakma,
   W/o Sri Swapan Chakma
   R/o Chakma Adam
   PO Bankumari PS: East Agartala Police Station
   District: West Tripura.
                                                                       ----Respondent(s)

   For Petitioner(s)                    :      Mr. P. K. Biswas, Sr. Adv.
                                               Mr. B. Biswas, Adv.
   For Respondent(s)                    :      Mr. R. Datta, PP
                                               Mr. S. Ghosh, Addl.PP.
                                               Mr. S. Nandy, Adv.
   Date of hearing                      :      12.08.2022.
   Date of pronouncement                :      16.08.2022.
   Whether fit for reporting            :      Yes

                       HON'BLE MR. JUSTICE T. AMARNATH GOUD

                                      Judgment & Order

By dint of this petition filed under Section 482 of the Cr.P.C, 1973,

the petitioner urge this court to quash the order passed by the Ld. Sessions Judge,

Gomati District, Udaipur, Tripura in Criminal Revision 01 of 2022 dated

12.04.2022 in connection with case No.PRC(WP) 24 of 2021 under Sections

498A/494 of IPC pending before the Ld. Sub-Divisional Judicial Magistrate,

Amarpur, Gomati Tripura.

[2] It is a case of the petitioner that in the year 2005, the complainant got married

with the petitioner herein and thereafter, since 2017, the torture upon the complainant started

and on 12.10.2020 the complainant came to know from a source that the petitioner herein is

getting married to a lady namely Smt. Paheli Tripura and after going there with some police

personnel she found that the petitioner herein performed marriage as per their Chakma

customary laws. The said complaint was filed before the officer in charge, Natun Bazar Police

station and the OC of the police station treated the same as FIR and registered the case as

Natun Bazar PS No.35 of 2020 dated 12.10.2020. After completion of the investigation, the

Investigating Officer of the case filed charge sheet before the Ld. Sub-Divisional Judicial

Magistrate, Amarpur, Gomati Tripura, Under Section 498A/494/212 of the IPC against the

petitioner as well as the lady namely Smt. Paheli Tripura. The petitioner made an application

for discharge under Section 227 of Cr.P.C before the Ld. Sub-Divisional Judicial Magistrate,

Amarpur, Gomati Tripura and the same was rejected. Being aggrieved and dissatisfied, the

petitioner herein approached the Ld. Sessions Judge, Gomati Tripura vide Criminal Revision

petition No.01 of 2022 and the Ld. Sessions Judge was pleased to discharge the petitioner

herein from Section 212 of IPC but directed the Ld. Sub-divisional Judicial Magistrate,

Amarpur, Gomati Tripura to frame charge under Section 498A and 494 of IPC against the

petitioner herein vide order dated 12.04.2022 Being dissatisfied with the order, the petitioner

approached this Hon'ble Court and hence this petition.

[3] During the course of the argument Mr. Biswas, learned senior counsel for the

petitioner submitted that he is not pressing the case for quashing of 498A of the IPC rather he

is before this court seeking discharge of Section 494 of the IPC directed to be framed against

the petitioner by the order dated 12.04.2022 by the court of the Sessions Judge, Gomati

District, Udaipur.

[4] On the other hand, the respondent no.2 has filed a complaint before the

Officer-in-Charge, Natun Bazar Police Station on 12.10.2020 against the petitioner stating that

the petitioner has married one Paheli Tripura and created trouble for the respondent No.2.

Through her said complaint, the complainant (the respondent No.2 herein) further contended

as follows:

Today 12.10.2020 AD, after getting an information as source, I went to Natun Bazar PS and Jatanbari Out Post. There, I requested the OC of the PS along with the police personnel I went to the place of occurrence and saw the accused No.1 (the petitioner herein) and accused No.2

performed marriage as per the Chakma customary law. The accused person No.1 illegally married the accused No.2, who is a Bangladeshi National. There are present Bangladeshi national and some of the villages and family members of the accused No.1 wrongfully restrained us. When I enquired about the accused No.2, the family members of the Accused No.1 assaulted me physically and outraged my modesty in front of the public. The accused No.2 and the other 5 nos. of the Bangladeshi nationals are international drug mafia. They used to sell drugs in different parts of India.

[5] Mr. Biswas, learned senior counsel for the petitioner contended that the

petitioner belongs to Schedule Tribe Chakma Community and accordingly there is no

prohibition for second marriage which enabled the petitioner to solemnize the second

marriage with Paheli Tripura on 12.10.2022. It is further contended by Mr. Biswas, learned

senior counsel that though it is typed in the affidavit that the petitioner belongs to Hindu

religion it is only a typographical error. The petitioner is not a Hindu but a Buddhist and

therefore Hindu Marriage Act is not applicable to the petitioner. The marriage so held

between the petitioner and Paheli Tripura does not fall under Hindu Marriage Act and

therefore, he prayed for quashing Section 494 of the IPC framed against the petitioner.

[6] Mr. S. Ghosh, learned Addl.PP submits that Chakma community belongs to

tribal community and they follow Buddhism. It falls under Hindu religion in the state of

Tripura. As per the definition of Hindu religion, Buddhist shall also be treated as Hindus as

defined under the Hindu Marriage Act. The second marriage performed by the petitioner

clearly attracts Section 494 of the IPC. This is clearly an act of bigamy which should not be

over looked by this court and prayed to dismiss the case in hand.

[7] Ms. S. Nandy, learned counsel appearing for the respondent No.2, while

adopting the argument advanced by Mr. S. Ghosh, learned Addl. PP, submitted that during the

subsistence of first marriage with respondent No.2, the action of the petitioner for solemnizing

marriage for the second time with one Paheli Tripura is a punishable offence under Section

494 of the IPC & it cannot be over looked by this court and prayed to discuss the petition.

[8]            Heard both sides.

[9]            This court before going into the depth of the matter, feels it necessary to

extract herein under:

       (i) IPC:-

"Section 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.

Exception: This section does not extent any person whose marriage with such husband or wife has been declared void by a Court of competent jurisdiction, nor to any person who contracts a marriage during the life of a former husband or wife if such husband or wife, at the time of the subsequent marriage, shall have not have been continually absent from such person for the space of seven years, and shall not have been heard of by such person as being alive within that time provided the person contracting such subsequent marriage shall, before such marriage takes place, inform the person with whom such marriage is contracted of the real state of facts so far as the same are within his or her knowledge."

(ii) Hindu Marriage Act:-

Section 2: Application of Act: (1) This Act applies--

(a) to any person who is a Hindu by religion in any of its forms or developments, including a Virashaiva, a Lingayat or a follower of the Brahmo, Prarthana or Arya Samaj,

(b) to any person who is a Buddhist, Jaina or Sikh by religion, and

(c) to any other person domiciled in the territories to which this Act extends who is not a Muslim, Christian, Parsi or Jew by religion, unless it is proved that any such person would not have been governed by the Hindu law or by any custom or usage as part of that law in respect of any of the matters dealt with herein if this Act had not been passed.

Explanation.--The following persons are Hindus, Buddhists, Jainas or Sikhs by religion, as the case may be:--

(a) any child, legitimate or illegitimate, both of whose parents are Hindus, Buddhists, Jainas or Sikhs by religion;

(b) any child, legitimate or illegitimate, one of whose parents is a Hindu, Buddhist, Jaina or Sikh by religion and who is brought up as a member of the tribe, community, group or family to which such parent belongs or belonged; and

(c) any person who is a convert or re-convert to the Hindu, Buddhist, Jaina or Sikh religion.

(2) Notwithstanding anything contained in sub-section (1), nothing contained in this Act shall apply to the members of any Scheduled tribe within the meaning of clause (25) of article 366 of the Constitution unless the Central Government, by notification in the Official Gazette, otherwise directs. (3) The expression "Hindu" in any portion of this Act shall be construed as if it included a person who, though not a Hindu by religion, is, nevertheless, a person to whom this Act applies by virtue of the provisions contained in this section.

[10] in Dilwale Balu Kurane vs State of Maharashtra reported in (2002) 2 SCC 135

has observed inter alia:

"12. Now the next question is whether a prima facie case has been made out against the appellant. In exercising powers under Section 227 of the Code of Criminal Procedure, the settled position of law is that the Judge while considering the question of framing the charges under the said section has the undoubted power to sift and weigh the evidence for the limited purpose of finding out whether or not a prima facie case against the accused has been made out; where the materials placed before the court disclose grave suspicion against the accused which has not been properly explained

the court will be fully justified in framing a charge and proceeding with the trial; by and large if two views are equally possible and the Judge is satisfied that the evidence produced before him while giving rise to some suspicion but not grave suspicion against the accused, he will be fully justified to discharge the accused, and in exercising jurisdiction under Section 227 of the Code of Criminal Procedure, the Judge cannot act merely as a post office or a mouthpiece of the prosecution, but has to consider the broad probabilities of the case, the total effect of the evidence and the documents produced before the court but should not make a roving enquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a trial (see Union of India v. Prafulla Kumar Samal)." Moreover, it is also well stated that at the stage of framing of charge meticulous consideration of evidence is not required. Reliance in this regard is placed on Md. Akbar Dar & others Vs. State of Jammu & Kashmir reported AIR 1981 SC 1548."

[11] Admittedly, as it appears from the record, the petitioner belongs to Chakma

community under the Schedule Tribe. The petitioner follows Buddhism. The contention which

is made by the petitioner that as per their customary practice there is no prohibition applicable

for them marrying more than once is the point to be determined by this court. According to

the counsel for the petitioner, as per the customary law, the petitioner has not committed any

offence. But in support of the said submission, the counsel for the petitioner has not placed

before this court any notification issued by the Government to say that the "Chakma

community" as per their customary right is permitted to marriage more than once with the

spouse being alive and living together. No document seems to be submitted by the petitioner

to show that they can claim liberty or discharge of the offence punishable under Section 494

of the IPC.

[12] In Venugopal K. vs Union of India & Ors reported in 2015 SCC OnLine Ker

798, all religions as defined under Section 2 of the Hindu Marriage Act fall under the Hindu

religion. Thus in the absence of any expressed provision no liberty is given to the petitioner to

perform more than one marriage with the spouse being alive and living together. The Kerala

High Court while dealing with the subject matter in hand had the occasion to refer to

judgment of the Supreme Court in Lilly Thomas v. Union of India : (2000) 6 SCC 224 wherein

the following was observed in paragraph 23.

"23. We have already seen above that under the Hindu Marriage Act, one of the essential ingredients of a valid Hindu Marriage is that neither party should have a spouse living at the time of marriage. If the marriage takes place in spite of the fact that a party to that marriage had a spouse living, such marriage would be void under Section 11 of the Hindu Marriage Act. Such a marriage is also described as void under Section 17 of the Hindu Marriage Act under which an offence of bigamy has been created. This offence has been created by reference. By providing in Section 17 that

provisions of Section 494 and 495 would be applicable to such a marriage, the legislature has bodily lifted the provisions Sections 494 and 494 IPC and placed them in Section 17 of the Hindu Marriage Act. This is a well known legislative device. The important words used in Section 494 are "Marries in any case in which such marriage is void by reason of its taking place during the life of such husband or wife". These words indicate that before of an offence under Section 494 can be said to have been constituted, the second marriage should be shown to be void in a case where such a marriage would be void by reason of its taking place in the lifetime of such husband and wife. The words "husband or wife" are also important in the sense that they indicate the personal law applicable to them which would continue to be applicable to them so long as the marriage subsists and the remain "husband and wife".

[13] As stated (supra) since the petitioner, being Buddhist, belongs to Hindu religion

and since there is no notification permitting the petitioner to marriage more than once with

the spouse being alive and living together as per the customary practice. It is not just on the

part of the petitioner to contend that he can marry more than once that amounts to bigamy

by marrying another woman while living with a living spouse at the time of second marriage.

Marriage, as this court feels, is a dutiful relation between a husband and wife. Under no

circumstances shall a spouse be allowed to solemnize marriage more than once when he/she

is already living with his/her spouse.

[14] In view of the above, this court is not inclined to interfere with the order dated

12.04.2022 of the court below which is just and proper and the petition is liable to be

dismissed.

        [15]           Accordingly, the petition stands dismissed.



                                                                                             JUDGE




Dipak