COMMON ORDER:

The present criminal petitions are filed seeking to call for the records pertaining to C.C.No.614 of 2014, on the file of the Judicial Magistrate of First Class, Adoni, Kurnool and to quash the same.

2. The 2nd respondent/de-facto complainant is the wife of the accused No.1, who is the petitioner in Crl.P.No.8948 of 2018. Accused No.2, who is the petitioner in Crl.P.No.9158 of 2018, is the 2nd wife of the accused No.1. Hence, the common order.

3. The 2nd respondent lodged a report before the Adoni Police Station, alleging that the accused No.1/petitioner and his family members harassing the 2nd respondent mentally and physically and later got married with another woman, who is accused No.2, by name Kiranmai R/o. Bangalore, Karnataka State. On 22.10.2011, all the accused came to the house of the 2nd respondent and voluntarily caused hurt.

4. Basing upon the said report, the police registered the crime as FIR No.16 of 2012 dated 25.01.2012, for the offences punishable under Sections 498(A), 504, 506, 494, 323 r/w 149 of the Indian Penal Code, 1860 (for short “I.P.C”). After due investigation, the police laid a charge sheet and the same was numbered as C.C.No.614 of 2014, on the file of the Judicial Magistrate of First Class, Adoni, Kurnool. Learned Magistrate issued summons to all the accused.

5. Now, said C.C. was assailed in the present criminal petitions seeking to quash the same, on the sole ground that Section 494 of I.P.C has no application to the present case, in view of the bar contained in Section 2(2) of the Hindu Marriage Act, 1955 (for short “the Act”).

6. Heard Sri M.Chalapathi Rao, learned counsel for the petitioners. Despite service of notice, no appearance was made on behalf of the unofficial respondent/defacto complainant.

7. For deciding the point for consideration, it is expedient to reproduce Section 2(2) of the Act:

Section2(2): Notwithstanding anything contained in sub-section (1), nothing contained in this Act shall apply to the members of any Scheduled Tribe within the meaning of clause (25) of Article 366 of the Constitution unless the Central Government, by notification in the Official Gazette, otherwise directs.

8. Learned counsel for the petitioners submitted that the central Government has not notified in the Official Gazette, applying the provisions of the Act, to the Schedule Tribes, therefore, learned counsel for the petitioner would contend that the Act is not applicable to the Schedule Tribes, as such there is no bar to the second marriage and he would further contend that, whoever having a spouse living marries in any case in which such marriage is not void by reason of its taking place during the life time of such spouse, hence, he urges to quash Section 494 of I.P.C.

9. Learned counsel for the petitioners relied on the judgment of the Hon’ble Apex Court reported as Dr Surajmani Stella Kujur v. Durga Charan Hansdah and another1 paragraph Nos.14 and 15 extracted hereunder:

14. Nowhere in the complaint the appellant has referred to any alleged custom having the force of law which prohibits the solemnisation of second marriage by the respondent and the consequences thereof. It may be emphasised that mere pleading

1 (2001) 3 SCC 13

of a custom stressing for monogamy by itself was not sufficient unless it was further pleaded that second marriage was void by reason of its taking place during the life of such husband or wife. In order to prove the second marriage being void, the appellant was under an obligation to show the existence of a custom which made such marriage null, ineffectual, having no force of law or binding effect, incapable of being enforced in law or non est. The fact of second marriage being void is a sine qua non for the applicability of Section 494 IPC. It is settled position of law that for fastening the criminal liability, the prosecution or the complainant is obliged to prove the existence of all the ingredients constituting the crime which are normally and usually defined by