The main legal point established in the judgment is that the provisions of the Hindu Marriage Act are not applicable to tribal communities, and second marriages are permissible in such communities.

JUDGMENT

A.K. Shrivastave, J.

1. This is an application under Section 482 of Cr.P.C. praying that the Complaint Case No. 1969/2008 pending in the Court of Judicial Magistrate First Class, Mandla filed by respondent/complainant, which has been registered under Section 494 of IPC, be quashed. The respondent filed a complaint case and after recording her testimony under Section 200 and the witnesses under Section 202 of Cr.P.C., a case under Section 494, IPC has been registered against the applicant and notice was issued to him. Indeed, for the quashment of the registration of the case under Section 494 of IPC against the applicant this application under Section 482 of Cr.P.C. has been filed.

2. The contention of Ms. Goel, learned Counsel for the applicant/husband is that the respondent/complainant herself has averred in Para 1 of the complaint that she belongs to Gond community and got married to the applicant according to the custom prevailing in the Gond community in the month of Vaisakh (corresponding month June), 1981. After the marriage two children were also born out of the wedlock of complainant and the present applicant. However, in the month of October, 1990 the applicant upon the insistence of other co-accused persons solemnised valid second marriage according to the custom in the Gond community before the sacred fire and after performing Saptapadi, hence it has been averred in the complaint that the applicant/husband has committed the offence under Section 494 and other accused persons have committed the offence under Section 494/109 of IPC. By placing reliance upon the Division Bench decision of this Court in the case of Kunwar Singh Marko Vs. Shiv Dayal Sarote, ILR [1998] 769, it has been argued by her that in the community of Adivasi Gond, second marriage is permissible and male member is permitted to keep more than one wife and on the same proposition another decision of Single Bench of this Court in the case of Kumari Bai w/o Anand Ram Vs. Anandram Nathu Thakur, (1998) 2 MPLJ 584, has been relied wherein it has been held that the provisions of Hindu Marriage Act have no applicability in regard to the tribal community wherein second marriage is permissible and if second marriage is solemnised it will not be a void marriage. By putting emphasis on the decision of the Supreme Court in the case of Dr. Surajmani Stella Kujur Vs. Durga Charan Hansdah, 2001 AIR SCW 711, it has been put forth by learned Counsel that in the Scheduled Tribe community, second marriage is permissible and the provisions of Hindu Marriage Act are not applicable. Hence, it has been prayed that since admittedly the parties are the members of the tribal community as they are Gond, therefore second marriage solemnised by the applicant is not void and is a valid marriage, which is permissible in their community. Hence, no offence has been committed by the applicant. On these premised submissions, it has been prayed that this application under Section 482 of Cr.P.C. be allowed.

3. On the other hand, Shri Saini, learned Counsel appearing for the respondent submits that whether the custom of solemnisation of second marriage is prevailing in the Gond community is a question of fact and enquiry and, therefore, at the threshold the complaint case which the respondent/complainant has filed cannot be dismissed. In support of his contention, learned Counsel has placed reliance upon the Single Bench decision of this Court in the case of Kailash Singh Vs. Mewalal 2002 (1) M.P.H.T. 526 : 2002 (II) MPWN 8. Hence, it has been prayed that this application under Section 482 of Cr.P.C., be dismissed.

4. Having heard learned Counsel for the parties, I am of the view that this application under Section 482 of Cr.P.C. deserves to be allowed.

5. On bare perusal of the complaint filed by respondent before the learned JMFC, Mandla, it is gathered that the parties are of Gond community and in this regard, Para 1 of the complaint may be seen. Further, it has been averred by the