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2019 Supreme(MP) 654
IN THE HIGH COURT OF MADHYA PRADESH AT INDORE
SUNIL KUMAR AWASTHI, J.
Sayna Bee – Appellant
Versus
Israr Ahmad – Respondent
Criminal Revision No. 101 of 2017
Decided On : 27-03-2019
Interpretation of Section 494 of IPC in the context of Muslim Law and Hindu Marriage Act
Headnote:
Bigamy - Muslim Law - Interpretation of Section 494 of IPC
Fact of the Case:
The applicant, a married wife, alleged that the respondent contracted a second marriage without divorcing her, which is punishable under Section 494 of IPC. The trial court took cognizance, but the revisional court set aside the order.
Finding of the Court:
The court found that under Hindu Marriage Act, bigamy is prohibited, but under Muslim Law, a Muslim man can have up to four wives. The court concluded that the provisions of Section 494 of IPC did not apply to persons belonging to the Muslim community.
Issues: Interpretation of Section 494 of IPC in the context of Muslim Law and Hindu Marriage Act
Ratio Decidendi: The court interpreted the provisions of Section 494 of IPC in light of the Hindu Marriage Act and the Marriage, Maintenance of Wives and Restitution of Conjugal Rights of Mahomedan Law, and concluded that bigamy is permissible under Muslim Law.
Final Decision: The revision petition was dismissed, upholding the revisional court's decision to set aside the order of taking cognizance against the respondent for the offence under Section 494 of IPC.
JUDGMENT :
SUNIL KUMAR AWASTHI, J.
1. Applicant has preferred this revision petition under Section 397 read with Section 401 of the Code of Criminal Procedure, 1973 (for short “the Code”) being aggrieved by the order dated 27.10.2016 passed by Additional Sessions Judge, Khachrod, District Ujjain in Cr. R. No. 62/2013, whereby the order dated 30.11.2012 passed by the Judicial Magistrate First Class, Nagda District Ujjain in Criminal Case No. 1293/2012 has been set aside by which the Court has taken cognizance against the respondent for the offence under Section 494 of IPC.
2. Prosecution story in briefly stated, is that the applicant was married to the respondent on 26.12.2002 according to Muslim rituals and customs and one daughter was born from their wed lock on 09.04.2004. However, certain disputes arose between the parties regarding which the allegation of the applicant is that respondent along with his family members was persistently making demand of dowry and they were ill treating the applicant. In the year 2005, the respondent and his family members ousted the applicant and her daughter from the matrimonial house, therefore, she was compelled to reside with her parents. It is alleged that without taking divorce from applicant, the respondent solemnized second marriage with one Hamida Bee which is illegal and void and punishable under Section 494 of IPC.
3. The trial Court recorded the statement of complainant Sayna Bee under Section 200 of “the Code” and witness Mubarak Hussain under Section 202 of “the Code” and on the basis of that the Court took cognizance against the respondent and other accused persons for the offence punishable under Section 494 of IPC. Being aggrieved by the aforesaid order of taking cognizance, the respondent preferred revision petition before the Sessions Court which was allowed and the order passed by the learned Magistrate for taking cognizance against the respondent for the offence punishable under Section 494 of IPC has been set aside. This order is the subject-matter of challenge before this Court.
3.1. Learned counsel for the applicant has submitted that the applicant is the married wife of the respondent and she is living separately with the respondent, however, during her life time without taking divorce from her, the respondent contracted second marriage which is void, therefore, the trial Court has rightly taken cognizance against the respondent for the offence under Section 494 of IPC. However, the revisional Court has wrongly set aside the order passed by the Judicial Magistrate First Class, Nagda, hence counsel prayed that the revision application be allowed and the impugned order passed by the Additional Sessions Judge, Kachrod, District Ujjain be set aside.
4. Learned counsel for the respondent opposes the application by contending that the revisional Court has rightly held that the respondent belongs to the muslim community and as per the muslim law he is having right to marry more than one woman, therefore, no interference is warranted in the order passed by Sessions Judge.
5. Having heard learned counsel for the parties and perused the record.
6. Undisputedly, the applicant is married wife of the respondent and she is living separately from him and the respondent has not taken divorce from the applicant. Section 494 of IPC provides that 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.
7. According to provisions of Section 11 of the Hindu Marriage Act, 1955 (hereinafter referred as “the Act 1955”) any marriage solemnized after the commencement of this Act shall be null and void and may, on a petition presented by either party thereto, against the other party be so declared by a decree of nullity if it contravenes any one of the conditions sp
