July 29, 2011

A. Subash Babu versus State of Andhra Pradesh and Others

This Special leave petition arises out a Quash petition in the Andhra Pradesh High Court, concerned over the offences under 498A, 494, 495,417 and 420 IPC, has been partly allowed by quashing proceedings insofar as offence punishable under Section 498A IPC is concerned, whereas the proceedings relating to the offences punishable under Sections 494, 495, 417 and 420 IPC are ordered to continue against the appellant.
Petitioner aggrieved approaches court through an Special Leave Petition.
The facts of the case are as follows :
A.Suresh Babu, hereinafter, petitioner, was a Sub Inspector of Police, cheated the petitioner no.2 and her parents, by stating that his first wife had died after delivering two children who are studying and staying in a hostel, even though his first wife by name Sharda is very much alive and living with him.
The petitioner, on the pretext of constructing a house , demanded substantial amount of money from the parents of the respondent 2 , when denied, threatened dire consequences to the respondent 2 and her parents.
Aggrieved by the actions of the petitioner, the respondent no.2 lodged an FIR, in the Police Station, investigated and was charge sheeted. The Magistrate took cognizance of the offences and summoned the Petitioner.
An earlier attempt to quash the proceedings initiated by the Magistrate was withdrawn the petitioner and approached the court again on quashing of the charge-sheet by a separate petition.
The grounds under which the quash petition was based upon was that, the learned Magistrate under the Criminal Procedure Code, was not valid as , proceedings against the appellant were registered for commission of above mentioned offences on the basis of charge sheet submitted by the Sub-Inspector of Police and not on the basis of complaint made by the aggrieved person within the meaning of Section 198 of the Code. Secondly, as the Hindu Marriage Act, recognizes only one marriage, the grounds under which the petitioner has been charged is not valid , as the marriage itself is void.
Issues raised :
1. Whether the Second wife is entitled to legal remedy under Sec.494 and Sec.495 of the Indian Penal Code ?
2. Whether , in case of a special amendment to the Criminal Procedure Code, allow the Magistrate to take cognizance of the same?
Analysis and Judgment
As far as Section 494 IPC is concerned, the criminality attaches to the act of second marriage either by a husband or by a wife who has a living wife or husband, in a case in which second marriage is void by reason of its taking place during the life of such husband or wife. When a law, such as Section 11 of Hindu Marriage Act, 1955 declares that a second marriage by a husband, who has living wife, with another woman is void, for breach of Section 5 (i) of the said
Act, it brings/attaches several legal disabilities to the woman with whom second marriage is performed. Say for example, she would not be entitled to claim maintenance from her husband even if she is inhumanly treated, subjected to mental and physical cruelty of variety of kinds etc. and is not able to maintain herself.
Section 494 is intended to achieve laudable object of monogamy.
This object can be achieved only by expanding the meaning of the phrase “aggrieved person”. For variety of reasons the first wife may not choose to file complaint against her husband e.g. when she is assured of re-union by her husband, when husband assures to snap the tie of second marriage etc. Non-filing of the complaint under Section 494 IPC by first wife does not mean that the offence is wiped out and monogamy sought to be achieved by means of Section 494 IPC merely remains in statute book.
In Gopal Lal Vs. State of Rajasthan[1] this Court has ruled that in order to attract the provisions of Section 494 IPC both the marriages of the accused must be valid in the sense that the necessary ceremonies required by the personal law governing the parties must have been duly performed.
Though the law specifically does not cast obligation on either party to seek declaration of nullity of marriage and it may be open to the parties even without recourse to the Court to treat the marriage as a nullity, such a course is neither prudent nor intended and a declaration in terms of Section 11 of the Hindu Marriage Act will have to be asked for, for the purpose.
Therefore, until the declaration contemplated by Section 11 of the Hindu Marriage Act is made by a competent Court, the woman with whom second marriage is solemnized continues to be the wife within the meaning of Section 494 IPC and would be entitled to maintain a complaint against her husband.
Section 494 does not say that the complaint for commission of offence under the said section can be filed only by wife living and not by the woman with whom subsequent marriage takes place during the life time of the wife living and which marriage is void by reason of its taking place during the life of such wife. The complaint can also be filed by the person with whom second marriage takes place which is void by reason of its taking place during the life of first wife.
In Reema Aggarwal Vs. Anupam and others[2], holding that a person who enters into marital arrangement cannot be allowed to take shelter behind the smoke screen of contention that since there was no valid marriage the question of dowry does not arise.
Thus a bare reading of the provision and the necessary complaint , leads to the conclusion that the complaint is valid .
With respect to the Magistrate taking cognizance of the crimes , the apex Court, went into the details of conflict of laws between the State and the Centre, where the current amendment to the Code was wrongly interpreted by the High Court , and thus providing an injustice to the respondent.

[1] (1979) 2 SCC 170
[2] (2004) 3 SCC 199.

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