Only the erring husband or wife can be prosecuted under Section 494 IPC; a second wife cannot be held liable, as it constitutes an abuse of process of law.

ORDER:

This Criminal Petition is filed under Section 482 of the Code of Criminal Procedure [in short ‘the Code’] by the petitioner/A.2, seeking to quash the proceedings in C.C.No.66 of 2020 on the file of the Court of Judicial Magistrate of First Class, Nandyal, registered for the offence under Section 494 I.P.C. against her.

2. This is a quash petition filed by the second wife/Accused No.2 of Accused No.1, pursuant to the complaint filed by the first wife/de facto complainant. The short question that falls for consideration is whether a complaint under Section 494 C.P.C. is maintainable against the second wife of the erring husband or not.

3. Heard Sri V.Nitesh, learned counsel for the petitioner; learned Assistant Public Prosecutor for the respondent No.1/State and Sri Lakshmikanth Reddy Desai, learned counsel for the respondent No.2 and perused the material on record.

4. Learned counsel for the petitioner would submit that Section 494 IPC would be attracted only to a person, who marries again during the life time of husband/wife and that it is not applicable to the petitioner, since she was not married earlier as on the date of the alleged marriage with Accused No.1. Learned counsel further would submit that the cognizance can only be taken on a private complaint in view of the bar under Section 198 of the Code.

5. Per Contra, learned counsel for respondent No.2 would submit that the marriage of the defacto complainant with Accused No.1 is his second marriage since he took divorce from his first wife. He would submit that the marriage of Accused No.1 with the petitioner/A.2 is his third marriage. He would also submit that in the light of the Andhra Pradesh State Amendment to Section 494 IPC, it is a cognizable offence. To justify that the bar under Section 198 Cr.P.C. is not applicable in the present case, learned counsel would submit that a bare perusal of the FIR would show that after taking permission of the Court only, the case is registered and investigated into.

6. Learned counsel for the petitioner placed reliance on a decision of a Co-ordinate Bench of the High Court for the State of Telangana in Shaheed Naaz v. State of Telangana, 2023 SCC OnLine TS 3536. The relevant paragraph -11 is extracted hereunder:

“11. As per the contents of Section 494 of IPC, it is evident that it attracts to a person who has married during the life time of wife or husband. Therefore, the said offence attracts only to Accused No.1 and not to the second wife or her family members. Further, the contents of complaint do not attract the petitioners/accused Nos.2 to 4 for the alleged offence under Section 498-A IPC. Therefore, this Court is of the considered opinion that it is a mere abuse of process of law for being tried the petitioners/accused Nos.2 to 4 before the trial Court and the proceedings against the petitioners are liable to be quashed.” (Emphasis supplied)

7. Reliance was also placed on the decision in Padmanabham Mamidi v. State of Telangana and Ors., 2023 (1) ALD(Cri) 981 Relevant paragraph-5 is extracted hereunder:

“ 5. To attract an offence under Section 494 of IPC, a husband or wife while living, marries another when such marriage would be void by the reason of its taking place during life of such spouse, is punishable. In the present case, it is not the case of the police that this petitioner was already married by the time he married A1 on 12.08.2018. A person who is single marrying another whose marriage is subsisting is not liable under Section 494 of IPC, but the person whose marriage is subsisting would be liable. Even accepting that A1’s marriage was subsisting, the offence under Section 494 of IPC is not made out against the petitioner herein.” (Emphasis supplied)

8. At th