CRLP/7418/2015 of SMT. YEGGINA SREENIVASA PADMAVATHI AND ANOTHER Vs THE STATE OF A.P.,REP., PP AND ANOTHER on 31 December 2020

HONOURABLE SRI JUSTICE NINALA JAYASURYA

CRIMINAL PETITION No.7418 of 2015

ORDER: (Heard and pronounced through Blue Jeans App (Virtual) mode, since this mode is adopted on account of prevalence of COVID-19 pandemic.)

The present Criminal Petition is filed seeking to quash the proceedings against the petitioners/accused Nos.5 and 6, in C.C.No.1350 of 2014 on the file of the Court of the II-Additional Judicial Magistrate of First Class, Tanuku.

Pursuant to a complaint lodged by the 2[nd] respondent, a crime in F.I.R. No.7 of 2014 was registered under Section 494 r/w.34 of Indian Penal Code against the petitioners and other accused.

The brief facts, as per the complaint of the 2[nd] respondent, are as follows :- The 2[nd] respondent and one Akula Veera Venkata Satyanarayana (A.1) were married on 12.06.1998 at Tanuku, according to Hindu rights, caste and customs. Out of their wedlock, the 2[nd] respondent gave birth to a boy. As the accused No.1 and his family members were subjecting the 2[nd] respondent to cruelty, she filed a case against them under Section 498-A of IPC and a charge sheet was filed subsequently after investigation. As a counter blast to the said case filed by the 2[nd] respondent, her husband (A.1) filed a case seeking divorce in O.P.No.47 of 2003 on the file of the Court of Senior Civil Judge, Tadepalligudem. The 2[nd] respondent also filed a maintenance case in M.C.No.40 of 2005 on the file of the Court of Additional Judicial Magistrate of First Class, Tadepalligudem and the said maintenance case was compromised before the Lok Adalat on 09.07.2008 and an Award was passed, as the 2[nd] respondent and her husband (A.1) agreed to live together. The criminal case filed under Section 498-A of IPC was also compromised before the Lok Adalat on the said date. However, the husband of the 2[nd] respondent without withdrawing the O.P.No.47 of 2003 pursued the same and the said O.P. was allowed by an order dated 28.02.2006 and a decree of divorce was granted. Aggrieved by the same, the 2[nd] respondent filed Civil Miscellaneous Appeal No.411 of 2006 before the erstwhile High Court of Andhra Pradesh and the said CMA was allowed on 25.06.2013 and the order and decree dated 28.02.2006 passed in O.P.No.47 of 2003 was set aside. However, during pendency of CMA No.411 of 2006, the husband (A.1) of the 2[nd] respondent got married to another lady (A.2) and parents of accused No.2 i.e., accused Nos.9 and 10 are having knowledge that the 2[nd] respondent is legally wedded wife of accused No.1. Further that accused Nos.3 and 4 who are the parents of accused No.1 and accused Nos.5 and 6 (petitioners herein) who are sister and brother-in-law of accused No.1, and accused Nos.7 and 8 who are the neighbours, knowing very well that the marriage of accused No.1 with the 2[nd] respondent is subsisting, but performed the marriage of accused No.2 with accused No.1 and participated in the marriage actively which was celebrated on 15.02.2013. In the said complaint, it is stated that the marriage was accidentally seen by one Dommeti China Purnayya and Chekkapalli Suryakantham, who are the family friends of 2[nd] respondent and that they observed the marriage and all the rituals were followed by accused No.1 to 10, while celebrating the marriage of accused No.1 with accused No.2. Further when they got annoyed and questioned accused Nos.1 to 10, for celebrating the marriage of accused Nos.1 and 2 illegally,

Arguments

accused Nos.1 to 10 threatened them with dire consequences that if they reveal the marriage of accused No.1 with accused No.2 to anybody. In the said circumstances, the parents of the 2[nd] respondent along with China Purnayya and Suryakantham went to the house of accused No.1 on 20.02.2013 and questioned him for marrying accused No.2 ignoring his marriage with the 2[nd] respondent. As it is revealed by accused Nos.3 and 4 that they performed the marriage of accused No.1 with accused No.2, a complaint is lodged, which is later registered in Cr.No.7 of 2014 under Section 494 r/w.34 of IPC.

Heard the learned counsel for the petitioners and the learned Additional Public Prosecutor appearing for respondent No.1. No representation for respondent No.2.

Learned counsel for the petitioners, inter alia, contended that the petitioners who are arrayed as accused Nos.5 and 6 are not guilty of the alleged offences registered against them. He submits that the 2[nd]petitioner is a doctor by profession and a law abiding citizen. He further submits that though the 2[nd] respondent filed an appeal in C.M.A.No.411 of 2006, initially got an interim order dated 06.06.2006, the said order was subsequently vacated by order dated 02.04.2012. He also submits that even as per the specific case of the 2[nd] respondent, accused No.1 married the accused No.2 on 15.02.2013 and as on that date there is no order in favour of the 2[nd] respondent, much less an order restraining A.1 to marry again. Learned counsel, in such circumstances, submits that as the interim order granted in favour of the 2[nd] respondent was vacated, the decree of divorce revives and in those circumstances, the accused No.1 married the accused No.2. He further submitted that as the marriage of accused No.1 with respondent No.2 is not subsisting, the question of bigamy would not arise at all even in respect of accused No.1 and registration of crime much less against accused Nos.5 and 6/petitioners herein is not legally tenable, in as much as the ingredients of Section 494 of IPC are not attracted. Therefore, continuation of the proceedings against the petitioners constitutes abuse of process of law.

Learned counsel for the petitioners submits that the interim orders were in fact, vacated on 02.04.2012, but no steps were taken by the 2[nd]respondent, if at all she is interested in the matter for restoring the interim orders during pendency of the Civil Miscellaneous Appeal and the marriage of accused No.1 with accused No.2 took place on 15.02.2013. He also contends that the complaint has been filed against the petitioners herein only with a view to exert pressure and cause harassment to them. Further, learned counsel while placing reliance on the Judgment of Hon’ble Supreme Court in Krishna Gopal Dwivediv.Prabha Dwivedi[1]contends that the proceedings against the petitioners are liable to be quashed.

Learned Additional Public Prosecutor, on the other hand, submits that the matter requires conduct of trial, in view of the specific allegations made against the petitioners herein and prays for dismissal of the criminal petition.

In order to appreciate the legal contention raised by the learned counsel for the petitioners, Section 494 of IPC may be extracted for ready reference:

494. Marrying again during lifetime of husband or wife.—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.

(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 of the subsequent marriage, shall have been continually absent from such person for the space of seven years, and shall not have been heard of by such person as being alive within that time provided the person contracting such subsequent marriage shall, before such marriage takes place, inform the person with whom such marriage is contracted of the real state of facts so far as the same are within his or her knowledge.

As per the above provision of law, no doubt marrying again during lifetime of husband or wife would constitute an offence under Section 494 of IPC, but as per the exception carved out, the Section does not extend to any person whose marriage with such husband or wife has been declared void by a Court of competent jurisdiction. In the present case, by virtue of Decree of divorce dated 28.02.2006 in O.P.No.47 of 2003, the marriage between the accused No.1 and the 2[nd] respondent herein was declared null and void. Though, the said decree was challenged by way of an appeal in C.M.A.No.411 of 2006 and interim suspension of the judgment and decree in O.P.No.47 of 2003 was obtained on 28.02.2006, the same was vacated by an order dated 02.04.2012. It is not in dispute that the marriage of accused No.1 with accused No.2 was performed on 15.02.2013 when the order of suspension was not in operation. Virtually, the Decree of divorce came into force as a result of the order dated 02.04.2012 vacating the order of interim suspension, consequently the case on hand falls in the exception to Section 494 of IPC and thereby no offence warranting conviction of accused No.1 would arise.

At this juncture, it would be appropriate to refer to the Judgment of the Hon’ble Supreme Court relied on by the learned counsel referred to supra in Krishna Gopal Dwivedi case. In the said case, the husband who was appellant before the Hon’ble Supreme Court, after obtaining an ex parte decree of divorce, contacted a second marriage. Thereafter, the respondent/first wife obtained an order setting aside the ex parte decree of divorce and filed a complaint against the appellant for the alleged offence under Section 494 of IPC. The Hon’ble Supreme Court, looking to the facts of the case, quashed the criminal proceedings against the appellant/husband on the premise that as on the date of second marriage, the ex parte divorce decree was in force. Though the expression of the Hon’ble Supreme Court is not identical to the facts of the present case, the same in the opinion of this Court can as well be applied in as much as in the present case, the order of suspension of the decree of divorce was vacated and as a result, the said decree came into subsistence. Under the said circumstances, exception to Section 494 of IPC attracts and no offence in terms of Section 494 of IPC can allegedly be committed. Once, no case is made out attracting penal consequences in terms of Section 494 of IPC, the question of abetting the same by the petitioners/accused Nos.5 and 6 would not arise at all.

In view of the above discussion and the conclusions, the criminal proceedings initiated against the petitioners and the consequential trial is not warranted and continuation of the same tantamounts to abuse of process of law. Accordingly, in exercise of powers under Section 482

Cr.P.C., the proceedings in C.C.No.1350 of 2014 on the file of the Court of the II Additional Judicial First Class Magistrate, Tanuku, under Section 494 r/w. 34 of IPC insofar as the petitioners/accused Nos.5 and 6 are concerned, are quashed.

The Criminal Petition is allowed. No order as to costs. As a sequel thereto, the miscellaneous applications, if any, pending in this Writ Petition shall stand closed.

Date: 23.12.2020 AKC

______________________

NINALA JAYASURYA, J.

AKC

HONOURABLE SRI JUSTICE NINALA JAYASURYA

CRIMINAL PETITION No.7418 of 2015

Date: 23.12.2020