A second wife cannot be prosecuted under Section 494 IPC if she was unaware of her husband's prior marriage, as the law targets the erring spouse.

Order :

(Arvind Kumar Verma, J.)

1. With the consent of learned counsel for the parties, the matter is heard finally.

2. This petition has been preferred by the petitioner under Section 528 of the BNSS, 2023, for quashing the criminal proceedings of Complaint Case No.471/2013 pending before the JMFC, Raipur against the petitioner.

3. Brief facts of this case are that the marriage of the Complainant was taken place with Nagendra Kumar Dadsena on 18.05.2006 as per the custom prevailing in the society and due to wedlock on 09.06.2009, a daughter Yoglakshmi was born. Thereafter, the husband and family members have started harassing her mentally as well as physically. In the month of November, 2012, the family members ousted her saying that your husband has performed the second marriage. When she came to know that the husband has performed the second marriage with the petitioner on 11.05.2011 at Arya Samaj Temple Baijnathpara Raipur without obtaining divorce from the complainant so she made the complaint to the police on 03.12.2012, but no offence has been registered, therefore, she filed the complaint case including the name of petitioner and three others. On the basis of said complaint, a criminal case no. 1263/2013 for offence punishable under Sections 498-A, 34, 494/34 of IPC have been pending before JMFC, Bhilai and the proceedings of the said case are stayed by this Court vide order dated 09.03.2022. Learned trial Court passed the order for registration of the complaint on 20.06.2013 and fixed the case for recording the evidence before charge, the other two accused who were added in the complaint namely Vikas Chandrakar and Sanjay Chandrakar have challenged the order of registration of complaint dated 20.06.2013 in the revision, revision was dismissed on 20.03.2014 so the said persons have filed the petition u/s 482 of Cr.P.C. before this Court in which this Court allowed the petition and quashed the criminal case against those petitioners vide order dated 05.07.2023. The petitioner has filed the application for deleting her name from the array of respondent but the said application was dismissed vide order dated 03.10.2023. After passing of the order dated 05.07.2023, the learned trial court fixed the case for recording the evidence in the matter and side by side rejected the application of the petitioner for staying the proceeding of complaint case due to pendency of the criminal case no. 1263/2013 which is stayed by the High Court and in two cases petitioner is prosecuted along with others for the offence punishable u/s 494 of IPC therefore an application u/s 309 of Cr.P.C. is filed which was dismissed thereafter a revision is also dismissed and the petition u/s 482 of Cr.P.C. is filed by the petitioner and Nagendra Kumar Dadsena, said petition is withdrawn vide order dated 03.07.2024. The complaint case is filed on 04.01.2013 and the same is pending before the Judicial Magistrate First Class, Raipur against the petitioner and one Nagendra Kumar Dadsena and the same is fixed for evidence though the petitioner who is a woman cannot be prosecuted u/s 494 of IPC as the provision u/s 494 of IPC does not contemplate the person to whom the husband of the complainant has married therefore the petitioner is filing herewith the present petition for quashing of the proceedings of criminal complaint case no. 471/2013. Hence, this petition.

4. Learned counsel for the petitioner contended that the complaint case filed against the petitioner alleging that she is the second of the complainant's husband Nagendra Kumar Dadsena is not maintainable and the further prosecution of the petitioner is clear abuse of the process of law.

5. The provision contained u/s 494 of IPC which reads as under :-

"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 ei