JUDGMENT

Sanjay K Agrawal, J. - The present petition under Section 482 of the Code of Criminal Procedure (henceforth 'Cr.P.C.) is directed against the impugned order dated 12.01.2015 by which learned Sessions Judge, Durg (C.G.) has rejected the revision affirming the order passed by learned trial Magistrate dismissing the criminal complaint filed for offence punishable under Sections 494, 497 and 120(B) of the Indian Penal Code (henceforth 'IPC').

2. The petitioner in person/complainant would submit that she is the legally wedded wife of respondent No. 1 and respondent No. 1 has married some other woman in 2011 and is also blessed with two children, as such, she is guilty of bigamy which learned trial Magistrate and revisional Court did not notice despite her statement and the statement of one Monika Mehra. She submits that the impugned order and the order of trial Magistrate deserves to be set-aside and matter be referred to trial Magistrate for taking cognizance of offence punishable under Sections 494, 497 and 120(B) of the IPC.

3. Learned counsel for the respondents would oppose her submission and submit that the fact of second marriage has not been established and there is no evidence on record to show that respondent no. 1 has ever performed second marriage with some other woman. As such, the fact of second marriage has to be duly and strictly proved which has not been proved in the instant case. He would also submit that the provision contained in Section 497 of the IPC has already been struck down by the Constitution Bench of the Supreme Court in the matter of Bharat Singh and others v. Mst. Bhagirathi, (1966) AIR SC 405 , therefore, the petition deserves to be dismissed.

4. I have heard the petitioner in person and learned counsel for the respondents, considered the rival contentions and went through the record with utmost circumspection.

5. In order to have comprehension of the challenge made to the judgment of conviction and sentence, it would be profitable to notice Section 494 of the IPC, which runs thus:

"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 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. A bare and close perusal of Section 494 of the IPC would reveal the following essential ingredients of the offence under Section 494 of the IPC :

(i) The accused spouse must have contracted the first marriage,

(ii) While the first marriage was subsisting, the spouse concerned must have contracted a second marriage, and

(iii) Both the marriage must be valid in the sense that the necessary ceremonies required by the personal law governing the parties had duly been performed.

7. At this stage, it would be pertinent to mention that the offence under Section 494 of the IPC would be attracted only if the second marriage becomes void by reason that it had taken place during the subsistence of the first marriage and in the lifetime of one of the spouse.

8. At this stage, it is profitable to notice Section 17 of the Hindu Marriage Act, 1955 (henceforth 'the Act, 1955'), wh