High Court
Legal Reasoning
9 948-Cri.WP.128-24.odtincident is no more. He was the best witness to be examinedbefore the Court before the order of issue process. The reasonsbest known to the complainant why she did not examine him. 11.Issuance of process is not a mere formality. The Courtwhile exercising the power has to apply its mind, consider thematerial and form an opinion whether the complaint would besustained in future. Though the evidence was there of having achild born out of the relationship between the husband and theso-called woman, that is not the proof to believe that themarriage ceremonies were performed and it was a bigamy.Considering the pleadings of the complainant, it seems that itwas falling short of forming an opinion that prima facieevidence was available against the applicant/husband and hisrelatives to issue the process under Section 494, read withSection 34 of the IPC. Unfortunately, the sole eyewitness is nomore. So, even if the opportunity is granted to the petitionerto lead the evidence, no purpose would be served. If shewould produce new evidence that would be a omission andconsidered as a evidence produced after though. 12.The husband produced the document before therevisional Court stating that he was on duty on the alleged day 10 948-Cri.WP.128-24.odtof the incident, though it was Sunday. He also produced thecompany's in-and-out punching card. 13.Reviewing the facts of the case in toto, the pleadingswere insufficient to form an opinion that the respondent-husband has performed, the second marriage during thesubsistence of the first marriage. There were no specificpleadings about the ceremonies those are performed in theircommunity. General allegation of performing or celebratingthe ceremonies would not help the complainant to establishthe crime. In view thereof, the Court is of the view that theimpugned order is free from infirmity and illegality and doesnot warrant interference. 14.Hence, the writ petition stands dismissed.15.The Secretary, High Court Legal Services, Sub-Committee, Aurangabad do pay the legal fees to advocate Ms.Vanita Sangole as per the schedule. (S. G. MEHARE, J.)...vmk/-
Arguments
1 948-Cri.WP.128-24.odtIN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABAD948 CRIMINAL WRIT PETITION NO. 128 OF 2024NANDINI @ NANDA PRAVIN KHANDAREVERSUSTHE STATE OF MAHARASHTRA AND OTHERS...Advocate for the Petitioner : Mr. Vanita Haribhau Sangole.Jaitmal (Through Legal Aid).APP for Respondent-State : Ms. V. S. Choudhari.Advocate for Respondent : Party in person....CORAM : S. G. MEHARE, J.DATE :16.08.2024PER COURT :- 1.Heard the respective learned counsels.2.It is the matrimonial dispute. It has been alleged againstthe respondent that on 07.07.2019, he performed a marriageat village Viroli in Mahadev temple. One of the relatives of thepetitioner/wife learnt about his marriage on 05.03.2020, andhe told her that the marriage was performed by following theceremonies as per the customs and rituals observed by theircommunity. The person who witnessed his marriage was notexamined before issuing process. However, the process wasissued on the basis of the complaint and affidavit of thecomplainant with certain documents. Documents of the birth of 2 948-Cri.WP.128-24.odtchildren were placed on record. It has been alleged that twochildren were born out of the relationship between theapplicant and the so-called second wife, Ankita. The personwho was the witness to the marriage is dead.3.The learned Judicial Magistrate First Class consideredthe documents placed on record and the affidavit of thecomplainant and issued process under Section 494 read with34 of the Cr.P.C. The petitioner had impugned the orderissuing the process. The learned Sessions Judge, Ahmednagar,had allowed the revision and quashed and set aside the orderof issuance of process. Against that order, the wife approachedthis Court.4.The learned counsel for the petitioner submits that theopportunity was not granted to the applicant to produce therelevant documents. However, there was prima facie evidenceto show that the petitioner had children from the second wife.The document was also placed on record to show that his so-called second wife is also his family member. However, thelearned Sessions Court erred in holding that even if thedocuments of a hospital are believed, the inference can bedrawn legally from that document that, at the most accusedNos.1 and 2, are the biological parents of that child. But, no 3 948-Cri.WP.128-24.odtmarriage was performed between them. Therefore, the hospitaldocument cannot be considered, and prima facie sufficientmaterial to issue a process against the opponent. The learnedSessions Court again erred in holding that the statement of thecomplainant was hearsay. The person who had witnessed theincident was not examined as a witness. The said person isdead. Hence, there is no propriety in remanding the matter tothe learned Trial Court. She would further argue that thecomplainant has other documents to establish the secondmarriage during the subsistence of the first marriage. No fairopportunity was granted to the complainant by the Court toproduce the evidence to prima facie establish that therespondent/husband has committed the offence under Section494 of the IPC.5.Learned counsel for the petitioner relying on the case ofMs. Malavika Rajkotia Vs. Giriraj Subramanium of Delhi HighCourt, in Criminal M.C.1082 of 2019 and Criminal M.A.No.28506 of 2023, dated 03.01.2024, submits that whether themarriage was properly conducted or not is a matter of evidenceon merit. Prima facie material was available before the Courtto take the cognizance and issue process. She read thepleadings in the complainant and submitted that the stage, 4 948-Cri.WP.128-24.odtwhether the marriage is performed as per Section 7 of theHindu Marriage Act, is yet to come. Whether the marriage waslegally valid or proper is a matter of evidence, and unless theopportunity was given to lead the evidence, the Court wouldnot form an opinion that the marriage was not performed asper Section 7 of the Hindu Marriage Act. She prayed to remitthe matter. 6.Per contra, the respondent/husband in person has a casethat he was on his duties in a company in Pune on the allegedday of the incident. He was on duty for all day. He hasproduced the in and out duty punch card. He was there for allday. The person who informed the complainant is unknown tothem. He kept silent for about 8 months, disclosing themarriage of the applicant. The family members have beenunnecessarily harassed. Various attempts were made to fetchthe applicant back, but she did not come. She was not willingto cohabit with him. He submits that he belongs to the Marathacommunity, where Saptapadi is the ceremony. Unless the 7thstep is complete, the marriage cannot said valid under Section7 of the Hindu Marriage Act. He also submits that thedocuments placed on record were not sufficient to take thecognizance and issue process. The allegations were vague. The 5 948-Cri.WP.128-24.odtperson who informed the complainant was not examined forthe issuance of the process against them. The complainant filedthe complaint on the basis information supplied by him. Thismaterial witness ought to have been examined before theissuance of process and learned Trial Court did not considerthis material aspect. The Court cannot pass the order ofassumptions and presumptions. There should be sufficientmaterial to proceed against the accused. He supported theimpugned order. He relied upon the case of Bhaurao ShankarLokhande and another Vs. State of Maharashtra and another ;1965 SCR (2) 837. He also relied on the case of Smriti SinghAlias Mausami Singh and others Vs. State of U.P. and another;Application No.23148 of 2022, under Section 482, decided on19.09.2023. He submits that the complaint was absolutelyfalse and without any evidence which may be sufficient to issueprocess against him.7.The prime document placed on record by thecomplainant was the birth certificate of a child born to Ankitafrom the alleged wedlock. Unfortunately, the person who hadwitnessed the marriage was not examined before issuing theprocess. He was the prime witness. The pleadings in thecomplaint were on the basis of the information he had 6 948-Cri.WP.128-24.odtsupplied. The burden is on the complainant to prima facieestablish that the accused has married for the second time.The second marriage must be prima facie proved to believethat the offence under Section 494 of the IPC has beencommitted. One of the conditions for establishing the crime isthe solemnisation of marriage as per the custom prevailing inthe community, caste or religion the parties are governed. Thecase of K. Neelaveni Vs. State ; 2010 11 SCC 607 was referredto in the case relied upon by the complainant. In the said case,it has been observed that it has to be borne in mind that whileconsidering the application for quashing of the charge sheet,the allegations made in the First Information Report and thematerials collected during the course of the investigation arerequired to be considered. Truthfulness or otherwise of theallegation is not fit to be gone into at this stage as it is always amatter of trial. Essential ceremonies of the marriage weregone into or not is a matter of trial. 8.The facts of Bhaurao’s case relied upon by the applicantwere that he married complainant in 1962, and during thesubsistence of marriage, he performed the marriage withanother woman. The offence was tried, and the husbandBhaurao, was convicted. The sole question before the Hon’ble 7 948-Cri.WP.128-24.odtSupreme Court was that was it necessary for the prosecution toestablish that the alleged second marriage of the applicantNo.1 with another woman had been duly performed inaccordance with the religious rites applicable to the form of themarriage gone through. The Hon’ble Supreme Court,interpreting the term “solemnized”, observed that it means inconnection with the marriage ‘to celebrate the marriage withproper ceremonies and with due form’ according to the ShorterOxford Dictionary. It has been further observed that it follows,therefore, that unless the marriage is celebrated or performedwith proper ceremonies due form, it cannot be said to be‘solemnized’. It is, therefore, essential, for the purpose ofSection 17 of the Hindu Marriage Act. That the marriage towhich Section 494 applies on account of the provisions of theAct should have been celebrated with proper ceremonies andin due form. Merely going through certain ceremonies withthe intention that the parties may take to marry will not takethem ceremonies with law and approved by any establishedcustoms. 9. The learned Counsel for the petitioner read the pleadingsof the complainant, those were about the performance ofmarriage were that one of the relatives of the petitioner went 8 948-Cri.WP.128-24.odtto Mahadev Temple at village Viroli for Darshan. Hence, hewitnessed the illegal marriage. Admittedly, he was not aresident of the village Viroli. The complainant gave an oralexplanation in the court that his daughter was married in thatvillage. Hence, he went there. However, the learned counselfor the applicant did not perform his job correctly. So far as theceremony of the marriage is concerned, it was pleaded that themarriage was performed on 07.07.2019 at 11.00 a.m. It wasSunday. They performed the marriage as per the Hindu rightsand customs. All marriage ceremonies were performed. 10. Bare pleading that the ceremonies have been performedwas also not the complete information about the customsprevailing in their caste. The type of ceremonies that wereperformed was not specifically pleaded. However, the partiesare Hindus by religion governed under the Hindu MarriageAct. Saptapadi is one of the conditions for legal and validmarriage. However, that Rule is not strictly applicable to eachone of the Hindus if they have their own customs and rituals.Therefore, there should have been specific pleadings about thecustom prevailing in the caste. The ceremonies performed inthe marriage were also missing. The foremost important thingis that the deceased Subhash Auti was the sole witness to the