Advocates:
['SHARMILA SINGHAI', '', 'SANJAY AGRAWAL', 'REENA SINGH', 'IN PERSON', 'MANISH UPADHYAY', '', 'ASHISH GUPTA', 'AWAD KISHOR', 'SUNIL SAHU']

1

NAFR

HIGH COURT OF CHHATTISGARH, BILASPUR

CRMP No. 995 of 2016

Order R

eserved on : 24.01.2020

Order Delivered on: 28.01.2020

• Smt. Neelam Jaiswal W/o Shashank Jaiswal Aged

About 34 Years R/o Quarter No. 7- A, Road- 11,

Sector- 5, Bhilai, Police Station- Kotwali,

Bhilai, Tahsil And District- Durg, Chhattisgarh.

---- Petitioner/ Complainant

Versus

1.Shashank Jaiswal S/o Radheshyam Aged About 38

Years At Present Resident Of Banjari Mata Mandir,

D.S. Tower, A-5-302, Vyas Talab, Near R.T.O.

Office In Front Of Radio Station, Raipur Manpuri,

District- Raipur, Chhattisgarh.

2.Smt. Neelam Jaiswal W/o Radheshyam Jaiswal Aged

About 58 Years

3.Radheshaym Jaiswal S/o Murlidhar Jaiswal Aged

About 60 Years

4.Ankur Jaiswal S/o Radheshyam Jaiswal Aged About

30 Years

5.Manjusha Jaiswal W/o Manoj Jaiswal Aged About 32

Years

All are R/o Shop No. 5, Maitri Apartment, Risali,

Bhilai, Tahsil And District- Durg, Chhattisgarh

---- Respondents/ Accused

Petitioner

:

Mrs. Neelam Jaiswal in

person

For Respondent No. 1

:

Mr. Sunil Sahu,Advocate

For Respondents No. 2 to 5:

Mr. Manish Upadhyay,

Advocate

2

Hon'ble Shri Justice Sanjay K. Agrawal

C.A.V. Order

1.

The present petition under Section 482 of the

Code of Criminal Procedure (henceforth 'Cr.P.C.) is

directed against the impugned order dated 12.01.2015

by which learned Sessions Judge, Durg (C.G.) has

rejected the revision affirming the order passed by

learned trial Magistrate dismissing the criminal

complaint filed for offence punishable under Sections

494, 497 and 120(B) of the Indian Penal Code

(henceforth 'IPC').

2.

The petitioner in person/complainant would submit

that she is the legally wedded wife of respondent No.

1 and respondent No. 1 has married some other woman in

2011 and is also blessed with two children, as such,

she is guilty of bigamy which learned trial Magistrate

and revisional Court did not notice despite her

statement and the statement of one Monika Mehra. She

submits that the impugned order and the order of trial

Magistrate deserves to be set-aside and matter be

referred to trial Magistrate for taking cognizance of

offence punishable under Sections 494, 497 and 120(B)

of the IPC.

3

3.

Learned counsel for the respondents would oppose

her submission and submit that the fact of second

marriage has not been established and there is no

evidence on record to show that respondent no. 1 has

ever performed second marriage with some other woman.

As such, the fact of second marriage has to be duly

and strictly proved which has not been proved in the

instant case. He would also submit that the provision

contained in Section 497 of the IPC has already been

struck down by the Constitution Bench of the Supreme

Court in the matter of Bharat Singh and others v. Mst.

Bhagirathi¹, therefore, the petition deserves to be

dismissed.

4.

I have heard the petitioner in person and learned

counsel for the respondents, considered the rival

contentions and went through the record with utmost

circumspection.

5.

In order to have comprehension of the challenge

made to the judgment of conviction and sentence, it

would be profitable to notice Section 494 of the IPC,

which runs thus:

“494. Marrying again during lifetime of

husband or wife.—Whoever, having a husband

1

AIR 1966 SC 405

4

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.

Exception — This section does not

extend to any person whose marriage with

such husband or wife has been declared void

by a Court of competent jurisdiction, nor

to any person who contracts a marriage

during the life of a former husband or

wife, if such husband or wife, at the time