Muslim personnel cannot be prosecuted for the offence punishable under Section 494 of IPC in the context of Muslim marriage.

ORDER :

This Criminal Petition is filed by A1 to A7, under Section 482 of the Code of Criminal Procedure, 1973 (for short “Cr.P.C.”) seeking to quash the proceedings, in C.C.No.173 of 2018 on the file of learned Additional Judicial Magistrate of First Class, Rayachoty, YSR Kadapa District.

2. 2nd respondent in the above criminal petition, lodged complaint before Police, Rayachoty Police Station, alleging that A1 contacted second marriage with A4, without obtaining valid divorce as per law and Islamic Injunctions and marriage certificate was issued by Government, SAR QAZI of Rayachoty. Basing on the said complaint, Police registered Cr.No.602 of 2017 for the offence punishable under Section 494 read with 34 of the Indian Penal Code, 1860 (for short “IPC”). After investigation, charge sheet was filed and it was numbered as C.C.No173 of 2018.

3. Heard Sri D. Kodanda Rami Reddy, learned counsel for the petitioners and Sri S.V. Sainadh, learned Special Assistant Public Prosecutor for respondent No.1. There is no representation for respondent No.2.

4. Learned counsel for the petitioners submits that since the petitioners belong to Muslim community and marriage took place as per customs in vogue in Muslim religion, offence under Section 494 of IPC will not attract against them. As per Muslim personal law, husband contacting second marriage is not an offence under Section 494 of IPC. Therefore, continuation of criminal proceedings against the petitioners is an abuse of process of law and hence, he prays to allow the petition. The learned counsel placed reliance on un reported judgement in Crl.P.No.11625 of 2018.

5. Learned Special Assistant Public Prosecutor has placed before this Court, the decision reported in Jafar Abbas Rasoolmohammad Merchant v. State of Gujarat, 2015 SCC Online Guj 5552, wherein Single Judge of Gujarat High Court elaborately discussed application of Section 494 of IPC qua Muslim husband and held that Muslim personnel, cannot be prosecuted for the offence punishable under Section 494 of IPC.

6. In the complaint lodged before C.I. of Rayachoty Police Station, it was averred that 2nd respondent/complainant is legally wedded wife of A1 and their marriage was solemnized on 09.09.2004 at Groundnut Mills of Konduru Azmathulla of Masapeta of Rayachoty town, Kadapa District, as per Muslim rites and customs prevailing in Dudekula community. It was further averred that 2nd respondent/complainant studied B.Sc. Maths and B.Ed. course by the date of their marriage. After marriage, the accused started harassing her physically and mentally by demanding additional dowry and ill-treated her. It was further averred in the complaint that accused insisted 2nd respondent/complainant to give consent in writing for second marriage, for which she did not accept. 2nd respondent /complainant also lodged another complaint and the same was registered as crime No.261 of 2008 for the offence punishable under Section 498-A of IPC and later it was numbered as C.C.No.502 of 2008 on the file of learned Judicial Magistrate of First Class, Rayachoty. She also filed DVC No.2 of 2009 on the file of learned Additional Junior Civil Judge, Mandanapalle besides filing M.C.No.11 of 2009 and another M.C.No.18 of 2010 was filed on behalf of minor child. According to her, on 16.07.2017, she came to know about solemnization of second marriage of A1 with A4 on 20.05.2017, with the help of other accused. Basing on the said complaint, Police registered the crime as stated supra and filed charge sheet.

7. Admittedly A1 to A7 and respondent No.2 belong to Muslim community. 2nd respondent /complainant specifically averred in the complaint that she belongs to Muslim community and the marriage took place as per Muslim customs.

8. It is to be considered whether A1 to A7 committed offence under Sec 494 IPC and continuing of the proceedings would amount to abuse of process of law?

9. The main contention of the learned counsel for the petitioners in seeking to quash the