1. Two questions arise, in this revision:
(1) that the First Class Magistrate, Dharmavarm has no jurisdiction to take cognizance of the offence with which the accused are charged, and
(2) that the very act of taking cognizance under a repealed provision of law is vitiated.
2. The facts are: The wife prosecuted the husband with an offence punishable under S. 494, I.P.C, i.e, bigamy. The second marriage of the husband had taken place on 27-5-1955. On 31-5-1955 the wife made the complaint and gave her sworn statement too. The case was taken on file by the Sub-Divisional Magistrate that very day under Section 4 of the Madras Hindu Bigamy Prevention and Divorce Act, 1949. The husband and the other accused raised an objection to jurisdiction and the validity of entertaining the complaint by the Sub-Divisional Magistrate. The contentions were found against. They moved the Sessions Court for referring the case to the High Court. That petition, too, was not allowed; hence this revision.
3. The first objection is that by the time the alleged offence took place viz., 27-5-1955 and a complaint was preferred by the wife, the Bigamy Act, 1949 had become repealed by the Hindu Marriage Act (Central Act 25 of 1955) which came into force on 18-5-1955.
4. Section 17 of the Act makes bigamy punishable under S. 494, I.P.C just as Section 4 of the repealed Act had provided for. In substance the two provisions have secured for the aggrieved wife the right to prosecute the husband for bigamy.
5. The learned advocate for the petitioners maintains that inasmuch as it is Section 17 of the Central Act that declares void the second marriage, the competent Court having jurisdiction to deal with all matters touching the validity of the second marriage is the District Court as provided for under S. 19 and not the First Class Magistrate. Section 19 is worded thus:
“Every petition under this Act shall be presented to the District Court within the local limits of whose ordinary original civil jurisdiction the marriage was solemnised or the husband and the wife reside or last resided altogether.”
6. The District Court has been constituted the competent Court only for dealing with petitions under this Act. The complaint presented by the wife is certainly not a petition under the Act.
7. She is not asking for a declaration of the void nature of the marriage. She is merely pressing for a punishment for what she takes for granted viz., that the bigamous marriage had come about and that the marriage ipso facto became void under S. 17. What is contemplated under S. 19 is a petition for a relief like restitution of conjugal rights, judicial separations, divorce etc. and not a criminal complaint for an offence which is punishable under some other provision of law — 494 or 495, I.P.C There is no substance in the objection to jurisdiction of the First Class Magistrate.
8. The next point urged is that the First Class Magistrate has quoted a repealed provision of law in taking on file the complaint. But Section 190 of the Cr PC, does not make it incumbent that the provisions of any law should be quoted by a Magistrate in taking cognizance. An error, therefore, in the mention of the particular provision does not vitiate the cognizance itself. It is open to a Magistrate to proceed with the enquiry under any provision of law which the facts of the case and the evidence adduced might warrant.
9. Petition is dismissed.
V.S.B
10. Petition dismissed.