Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2024 Supreme(All) 655

IN THE HIGH COURT OF ALLAHABAD
GAUTAM CHOWDHARY, J.
Nisha – Appellant
Versus
State of U.P. – Respondents
Criminal Revision Defective No.470 of 2024
Decided on : 25-04-2024

Advocates:
Advocate Appeared:
For the Appellant : Diwakar Mishra, Gaurav Kumar Srivastava, Mohd Afroz Khan
For the Respondent: Baleshwar Dayal, G.A., Mayank Prakash Rawat

IMPORTANT POINT
The court established that for a valid claim of bigamy under Section 494 IPC, the prosecution must provide clear evidence of a valid prior marriage, the existence of the first spouse at the time of the second marriage, and the proper solemnization of the second marriage, failing which the allegations cannot stand.

Headnote:
DELAY CONDONATION - CRIMINAL PROCEDURE - Section 397, 401 Cr.P.C., Section 494, 504, 506 I.P.C., Section 7(2) Hindu Marriage Act - The court discussed the provisions of Sections 494, 504, and 506 of the IPC, emphasizing that for a valid claim of bigamy under Section 494, the prosecution must establish that the accused was previously married, that the first spouse was alive at the time of the second marriage, and that the second marriage was celebrated with proper ceremonies, including the 'Saptapadi' as per Hindu law. The court found that the allegations lacked sufficient evidence to support a prima facie case of bigamy, leading to the quashing of the summoning order against the revisionist.
Fact of the Case:
The revisionist was summoned for allegedly committing bigamy by marrying the opposite party while still married to another person. The complaint claimed that the revisionist had not obtained a divorce before the second marriage and had threatened the complainant. The revisionist argued that she had been living separately from her first husband for 16 years and had obtained a divorce before the second marriage, asserting that the complaint was false and malicious.
Finding of the Court:
The court found that the allegations of bigamy were not substantiated by evidence, particularly the lack of proof regarding the 'Saptapadi' ceremony, which is essential for a valid Hindu marriage. The court concluded that the complaint was based on concocted facts and constituted an abuse of the court process.
Issues: Whether the allegations of bigamy against the revisionist were substantiated by sufficient evidence to constitute an offence under Section 494 IPC.
Ratio Decidendi: To establish an offence under Section 494 IPC, the prosecution must prove that the accused was previously married, that the first spouse was alive at the time of the second marriage, and that the second marriage was celebrated with proper ceremonies. The absence of evidence regarding the essential elements of a valid marriage led to the conclusion that no prima facie case was made out.
Final Decision: The court quashed the summoning order under Section 494 IPC, allowing the revisionist's application, while permitting the proceedings under Sections 504 and 506 IPC to continue.

JUDGMENT :

Gautam Chowdhary, J.

1. Heard Shri Gaurav Kumar Srivastava, learned counsel for the revisionist, Shri Jai Kishan Chaurasia, learned A.G.A. for the State and Shri Surendra Kumar, Advocate, holding brief of Shri Mayank Prakash Rawat, the learned counsel for the opposite party No. 2 and perused the record.

2. There is a delay of 275 days in filing the present revision as per report of the Stamp Reporter.

3. Considering the cause shown in the affidavit filed in support of the delay condonation application and considering the consent of both the parties for condoning the delay, the Crl. Misc. Delay Condonation Application No. 01 of 2024 is allowed and accordingly the delay is condoned.

4. The present revision under Section 397/401 Cr.P.C. has been filed with a prayer to quash the summoning order dated 20.02.2023 passed by learned Additional Chief Judicial Magistrate, Court No. 2, Agra in Complaint Case No. 15795 of 2022 (Shubham Sharma Vs. Nisha), under Sections 494, 504, 506 I.P.C., Police Station Sikandra, District Agra.

5. The facts of the case which are required to be stated here are that on 05.12.2022 the opposite party No. 2 filed a complaint case against the present revisionist with the allegation that earlier revisionist had solemnized marriage with one Vijay Singh, and without obtaining any decree of divorce from any court of law and while her earlier husband is also alive, concealing these facts she has solemnized marriage with him in Arya Samaj Mandir according to Hindu rites and rituals and when it came into his knowledge he asked about the same from the revisionist then she threatened her for implicating him in false cases and she has also made demand of ten lakh rupees. On filing of the said complaint the court concerned, after recording statements of complainant and witnesses under Section 200 & 202 Cr.P.C. summoned the revisionist for the offence under Sections 494, 504, 506 I.P.C., which is the subject matter of challenge in the present revision.

6. Assailing the impugned summoning order dated 20.02.2023, main substratum of argument of learned counsel for the revisionist are as under:-

(i) The revisionist and her first husband, Vijay Singh, are residing separately for the last 16 years and they have no concern with each other. Earlier the revisionist has lodged an F.I.R. under Sections 147, 323, 354(Kha), 504, 506 I.P.C. against her husband, i.e., opposite party No.2 and his family members alleging therein that she had solemnized marriage with the opposite party No. 2 on 08.03.2022 in Arya Samaj Mandir, after marriage the opposite party No. 2 has not taken her to his home and stayed her in a rented house and he used to made sexual relations with her, on 28.12.2022 when she reached at the house of opposite party No. 2 to reside with him then the opposite party No. 2 and his other family members had abused her, and the opposite party No. 2 had torn her clothes and broken her one leg, regarding which she had also lodged an F.I.R. dated 16.01.2023 which was registered as Case Crime No. 06 of 2023, under Sections 147, 323, 354(Kha), 504, 506 I.P.C., Police Station Trans Yamuna, District Agra, and in counter blast the present complaint case has been filed by her husband.

(ii) The revisionist and her first husband namely Vijay Singh filed divorce petition under Section 13-B of Hindu Marriage Act before the Additional Principal Judge/ Family Court, Mathura on 27.07.2022 and the Family Court allowed the said divorce petition dated 04.07.2023 and the said divorce petition was filed before she has solemnized marriage with the opposite party No. 2, thus, a false complaint has been filed against her.

(iii) Much emphasis has been given by contending that the allegations levelled against the revisionist are wholly false and based on concocted facts.

(iv) Referring to the contents of complaint and statements under Section 200 and 202 Cr.P.C., it is also argued that there is no whisper about the facts that as to what rites, ceremon