1. The instant Crl.O.P. is to call for the records in C.C.No.399 of 1998 on the file of the Judicial Magistrate, Padmanabhapuram and quash the same.
2. This Crl.O.P. has arisen in this way:
The petitioner herein is the husband. The respondent herein is the wife. The petitioner married the respondent on 26.1.1976 at Karavilai L.M.S. Church, Nattalam according to the Christian rites At the time of the marriage, the petitioner was working as M.T. driver in Air Force at Nagpur. After marriage, he took the respondent to Nagpur. They were living there for some time. Later, in the lawful wedlock, a male child was born to the respondent on 7.5.1977. There afterwards, difference of opinion arose between the spouses, the respondent returned to her parent's house. Nearly, for fifteen years, the couple were living separately. The respondent herein instituted proceedings under Sec.494, I.P.C. against the petitioner and one Mallika alleging that on 3.2.1996, she received notice in D.O.P.No.48 of 1996 instituted by the petitioner herein seeking divorce from the respondent herein. When she went to Coimbatore, she came to know that the petitioner herein had married the second accused Mallika on 25.10.1978 at Vazavatcha Kashtam village according to the Hindu rites; she came to know that all the ceremonies including Sapthapathi were performed at the time of second marriage. Her case is that the husband has taken a second wife, when his marriage with the respondent herein is still existing.
3. The learned Judicial Magistrate examined the complainant/ respondent herein, took the complaint on file in C.C.No.399 of 1998 and issued summons to the petitioner herein and the second accused Mallika. Summons sent to Mallika was returned unserved.
4. Now, the petitioner herein has come forward with the instant Crl.O.P. to quash the proceedings alleging that at no time, he had taken a second wife, that Mallika is a fictitious person, and that the complainant herein has instituted the proceedings in C.C.No.399 of 1998 after a lapse of 20 years and therefore, the proceedings should be quashed.
5. Heard both the sides. Sec.494 I.P.C. recites as under:
"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:The Section does not extend to 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 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."
"6. Therefore, the essential ingredients to attract the offence under Sec.494, I.P.C. are: (i) the accused must have contracted the first marriage; (ii) the first marriage must be subsisting; (iii) the accused must have married again; and (iv) both the marriages must be valid in the sense that necessary ceremonies must have been observed."
7. The learned counsel for the petitioner submits that even the facts in the complaint are taken to be true, they be themselves would go to show that there had been no valid second marriage. The learned counsel for the petitioner cited a few authorities to stress his point.
8. In Bhaurao v. State of Maharashtra, A.I.R. 1965 S.C. 1564 which relates to a case where one Bhaurao Shankar Lokhande married one Indubai during 1956 and during February, 1962, he married one Kamalabai, a contention was raised that in law, it was necessary for the prosecution to establish that the alleged second marriage had been duly performed in accordance with the religious rites applicable to the form of the marriage gone through. In that case, a reference is made to Sec.17 of the Hindu Marriage Act, which requires solemnization of the second marriage. In that case, Their Lordships of the Supreme Court have pointed out that solemnization in connection with the marriage means to celebrate the marriage with proper ceremonies and in due form and that merely going through certain ceremonies with the intention that the parties be taken to be married would not be sufficient. It was also pointed out by their Lordship that if the marriage is not a valid marriage, it is no marriage in the eye of law, and that the bare fact that a man and a woman were 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.
9. The facts relating to the decision reported in C.G.Rangabashyam v. Mrs.Ranjani Murugan , 1980 L.W. (Crl.) 174 briefly stated are: One Murugan married Ranjani Murugan; Later Murugan developed illicit intimacy with the second accused, who happened to be the wife of the third accused; while the marriage between Murugan and Ranjani Murugan was subsisting, Murugan married the second accused on 26.3.1978 when her marriage with the third accused was also subsisting; Later, a collusive decree of divorce was obtained by accused No.2 from accused No.3; When Ranjani Murugan had preferred a complaint under Sec.494, I.P.C., it was contended that the second marriage between Murugan and accused No.2 was a void marriage, because at the time of the marriage between accused No. 1 and accused No.2, their earlier marriages with their respective spouses were existing; It was pointed out that the second marriage should have been a valid marriage solemnized according to the ceremonies required to be performed and that should have become void only by virtue of Sec.17 of the Hindu Marriage Act, because of the existence of valid marital tie with the other spouse. In that case, Varadarajan, J. as reported in Swarna Mukherjee v. Basantha Ranjan, A.I.R. 1955 Cal. 533 and Satyanarayana v. State of A.P., 1962 MLJ. (Crl.) 138.
10. Of course, when it came to the question of solemnization of marriage and the ceremonies to be performed, in Manjula v. Marti, 1998 Crl.L.J. 1476 Sidickk, J. has pointed out that after coming into force of Sec.7-A of the Hindu Marriage Act, no formal ceremony is necessary for a valid Hindu marriage in that mere exchange of garlands or even tying of thali around the neck of the bride was sufficient to conclude a marriage.
11. The learned counsel for the respondent cited several authorities to stress that by virtue of existence of the first marriage, taking a second wife would ipso facto attract the offence under Sec.494, I.P.C.
12. The judgment in the decision reported in The Government of Bombay v. Ganga , I.L.R. (1880)4 Bom. 330 was delivered on 29.1.1880. That was a case where a Hindu wife became converted to Islam and later married a Muslim. A Division Bench of the then existing appellate criminal court held that the Hindu Law as it stood then did not allow a Hindu wife to remarry, unless she had obtained divorce or obtained the consent of her husband. It was also pointed out the apostasy would not put to an end to the marriage with her first husband.
13. The decision reported in Emperor v. Lazar, (1907)30 I.L.R. Mad. 550 relates to a case of native Christian having christian wife living and marrying a Hindu woman according to the Hindu rites without renouncing his religion.
14. The decision reported in Narayana v. Emperor, A.I.R. 1932 Mad. 561 relates to a case of second marriage by the wife in the first husband's life time without annulling the first marriage.
15. In all the decisions cited supra by the learned counsel for the respondent it was held that taking a second spouse is an offence, because it was based on the sound legal principle then existed that a Hindu woman is not allowed to be remarried unless or until divorce is obtained or consent of her husband was given.
16. The same facts were looked into at from a different angle in Gopal Lal v. State Of Rajasthan., A.I.R. 1979 S.C. 713. In that case, the Apex Court has held that to attract the provision of Sec.494, I.P.C., the second marriage should be a valid marriage and becomes void under Sec.17 of the Hindu Marriage Act.
17. The facts of the case reported in S.Radhika Sameena v. S.H.O. Habeebnagar Police Station, Hyderabad, 1997 Crl.L.J. 1655 relate to a Muslim who married a Hindu woman under the provision of Special Marriage Act Later he took another wife, a Muslim, as per the Islamic Law. When he was prosecuted for the offence under Sec.494, I.P.C., he contended that a Muslim can take four wives under the Personal Law and therefore, his second marriage would not attract the offence under Sec.494, I.P.C. Referring to the provisions of Sec.44 of the Special Marriage Act, 1954, that having married under the Special Marriage Act, if a person again contracts a second marriage, it was held that he shall be deemed to have committed offence under Sec.494 or 495, I.P.C. The learned Judges pointed out that a Muslim is not immune from prosecution. It was also pointed out that the wife, who becomes to convert to Islam, by reason of conversion will not be disentitled from prosecuting her husband for bigamy, since their marriage was under the Special Marriage Act and under the Muslim Personal Law. In that case, the Hindu wife after some time became a convert to Islam. The learned Judges referred to an earlier decision of this Court reported in Vaidyanathan v. Abdul Allam, A.I.R. 1946 Mad. 446 wherein it was held that a person married under the Special Marriage Act, commits bigamy, if he marries again during the lifetime of his spouse, and it matters not what religion he professes at the time of the second marriage.
18. That decision was rendered under the Special Marriage Act, where there is a specific provision that whoever marriage under the Special Marriage Act cannot take a second spouse irrespective of religion to which the spouse belongs. I feel, these decisions are not applicable to the facts of the instant case.
19. Here is a case where a Christian who has validly married a Christian lady as per the Christian rites, is alleged to have taker a second wife, who is a Hindu as per the Hindu rites. Such marriage is a void marriage. It is not a marriage in the eye of law. Then, it has to be considered that even if the petitioner and the second accused Mallika had been living together for a long time under the same roof, they have to be considered as a man and a woman living under the same roof without any marital tie. In that view of the matter, I am inclined to hold that the instant proceeding under Sec.494, I.P.C. is not maintainable.
20. The other points raised by the petitioner are that Mallika is a fictitious person and he had not undergone any marriage ceremony with her. If at all a trial is to be held, this is a matter to be decided on evidence by the trial Court. This Court cannot go into that aspect whether Mallika is a fictitious person or not.
21. The next contention of the petitioner is that the respondent having preferred a private complaint alleging that the petitioner had taken a second wife had not examined any witness in support of her case before the learned Judicial Magistrate to take cognizance of the offence. The learned counsel for the petitioner submits that the complaint itself would go to show that the complainant has no persona knowledge of the second marriage, and that none of the witnesses cited in the complaint had been examined under Sec.20, Crl.P.C. before the complaint was taken on file.
22. According to the learned counsel for the petitioner, since there is no legal record for application of judicial mind at the time of taking the complaint, the order passed by the learned Judicial Magistrate is without jurisdiction and the same has to be quashed. I feel, it is not necessary to go into this aspect also, because on the very basis of the complaint and the averments in the petition, it is clear that the alleged marriage is per se a void marriage.
23. The petitioner had raised another question, that is, question of limitation. According to the petitioner, the respondent had instituted the proceedings under Sec.494, I.P.C. nearly 20 years after her marriage. The learned counsel submits that even according to her, she came to know of the marriage on 3.2.1996, but she had instituted the proceedings under Sec.494, I.P.C. during 1998, only after lapse of two years and the limitation would set in.
24. The learned counsel for the respondent drew my attention to the decision reported in Ram Kripal Prasad v. State of Bihar, 1985 Crl.L.J. 1048 (F.B.) wherein a Full Bench of the Patna High Court has held that the disputed issue of limitation under Secs.468 to 473, Crl.P.C. cannot be raised directly in the High Court in quashing for proceedings under Sec.482, Crl.P.C. It was pointed out that it cannot be said that as lack of sanction being a legal bar can provide a ground for quashing criminal proceedings, limitation is also an identical bar entitling the petitioners to claim quashing of the proceedings before the High Court in the first instance; that lack of sanction where it is provided as the prerequisite for taking cognizance would present an inflexible and blanket legal bar to the prosecution till the same is obtained, that either the requisite sanction is forthcoming or it is not, no issue of computation, condoning or overriding the same can at all arise. That the concept of limitation on the other hand under Chapter 34 of the Code presents no such blanket bar at all, and the issue of limitation is first a matter to be raised and then to be computed and thereafter determined by the Court on the basis of a proper explanation of delay or overriding the default if necessary in the interests of justice.
25. Therefore, the question of delay has also to be considered by the trial Court and not by this Court at this stage of the proceedings. However, in view of my finding that there had been no legal marriage between the petitioner herein and the second accused in the complaint, I feel, the continuance of the proceedings in C.C.No.399 of 1998 would be of no use and would be abuse of process of law. Accordingly, this Crl.O.P. is allowed. The further proceeding in C.C.No.399 of 1998 on the file of the Judicial Magistrate, Padmanabhapuram, is quashed. Consequently, Crl.M.P.Nos.9684 and 9685 of 1999 are closed.