High Court

Legal Reasoning

909-*Cri-Appln-4271-19, 535-20.odtIN THE HIGH COURT OF JUDICATURE OF BOMBAYBENCH AT AURANGABAD909 CRIMINAL APPLICATION NO. 4271 OF 2019BEGUMBI W/O. SHAIKH AZIZ AND OTHERSVERSUSSHABANA BEGUM W/O. SHAIKH RAISWITHCRIMINAL APPLICATION NO. 535 OF 2020SHABANA W/O. SHAIKH RAEES AND OTHERSVERSUSSHABANA BEGUM W/O. SHAIKH RAIS .…Ms A. N. Ansari, Advocate for the Applicants Mr. R. B. Sanap, Advocate for the Respondent sole.…CORAM: Y. G. KHOBRAGADE, J.DATE:25.02.2025PER COURT :- 1.In both these Applications under Section 482 of theCode of Criminal Procedure, the Applicants have prayed to quashand set aside the order dated 28.11.2019 passed by the learnedAdditional Sessions Judge-6, Aurangabad, whereby it upheld theorder of issuance of process passed by the learned J.M.F.C. CourtNo.4, Paithan, District Aurangabad on 19.09.2017 for the offenceunder Section 494 read with Section 109 of the Indian PenalCode. 1 of 9 (( 2 ))909-*Cri-Appln-4271-19, 535-202.In both these Applications, the Applicants are the originalaccused and the non-Applicant is the original complainant. For thesake of brevity, I would like to refer the parties to the presentApplications in their original capacity.3.The complainant has filed a criminal complaint bearingR.C.C.No.70 of 2013 alleging that, on 01.05.2008, her marriagesolemnized with accused No.1 as per the Muslim customs and rites atPaithan, District Aurangabad. After marriage, she cohabited withaccused No.1. Out of said matrimonial relations, she was blessedwith a female child on 14.04.2009. However, subsequently, herhusband accused No.1 subjected her to cruelty and domestic violencedue to non fulfillment of demand of dowry. Further, the accused no.1 removed all gold and silver ornaments from her person, and shewas driven out of her matrimonial house after being beatenmercilessly. The complainant further alleged that, on 15.08.2011, shedelivered a female child on second time at her parental house.Thereafter her father gave message to the accused persons aboutblessing of second time female child. Thereafter, on 21.08.2011, theaccused Nos. 4 and 6 both visited to see the newborn female child. Atthat time, the father of the complainant inquired with accused No.1as to when his daughter would be taken for cohabitation, but the 2 of 9 (( 3 ))909-*Cri-Appln-4271-19, 535-20accused No.6 who is husband of sister-in-law of the Respondentquarreled with him and left her parental house. The complainantfurther alleged that during subsistence of her first marriage with theaccused No.1, on 28.08.2011 her husband performed secondmarriage with accused No.2. The accused Nos. 3 to 11 helped andparticipated while solemnization of second marriage of accused No.1with accused No.2. The accused Nos. 5, 10 and 11 also stood witnessto the Nikahnama between the accused Nos. 1 and 2. It is furtheralleged that, she had initiated a proceeding under Section 498-A ofthe I.P.C. against the accused No.1 and during investigation of saidcrime, the Police recorded statements of witnesses and accused No.1.While recording the statement, the Accused no. 1 made a confessionalstatement that, he has solemnization of second marriage with accusedNo.2. After recording statement of verification of the complainant andafter satisfying about allegedly committing the offence by the Accusedpersons, therefore, the learned J.M.F.C., passed an order on19.09.2017 and issued process against the accused Nos. 1 to 11 forthe offence under Sections 494 read with Section 109 of I.P.C.4.Being aggrieved by said order, the accused/Applicant Nos.1 to 11 instituted the Criminal Revision Application No.34 of 2018 3 of 9 (( 4 ))909-*Cri-Appln-4271-19, 535-20u/s 397 of Cri. P. C., before the Sessions Court. On 28.11.2019, thelearned Sessions Judge passed the impugned order and dismissed theRevision Application. Therefore, the Applicants/accused Nos. 3, 4, 6to 9 have filed Criminal Application No.4271 of 2019 and accusedNos. 2, 10 and 11 have filed Criminal Application No.535 of 2020. 5.The learned counsel for the Applicants canvassed invehemence that, the complainant has not made statement in thecomplaint that, all the accused Nos. 2 to 11 were having knowledgeabout subsistence of first marriage between her and accused No.1. Itis also not made an averment that, the Accused 3 to 11 areparticipated while performing second marriage between accused Nos.1 and 2 during subsistence of first marriage between her accusedNo.1.6.It is further canvassed that, the accused No.1 is majormarried person and having right to take it’s own individual decisionin his life. The complainant has not brought any material on recordto show that the accused 3 to 11 are abetted the accused No.1 and 2for performing second marriage. Therefore, essential ingredients toconstitute the offence under Section 494 read with Section 109 ofI.P.C. are absent. Therefore, the learned Judicial Magistrate as well as 4 of 9 (( 5 ))909-*Cri-Appln-4271-19, 535-20the learned Revisional Court could have refused to issue the processagainst the Accused. However, both the Courts below wrongly reliedon statements of the complainant and issued process under Section494 read with Section 109 of I.P.C. Therefore, prayed for quash andset aside the order dated 28.11.2019 passed by the learned AdditionalSessions Judge-6, Aurangabad and thereby upheld the order ofissuance of process passed by the learned J.M.F.C. on 19.09.2017.7.Per contra, the learned counsel for the complainantcanvassed that, the accused No.1 is the husband of the complainant.The accused No.2 is a second wife of accused No.1. The accused No.3is the elder brother of accused No.1. The accused No.3 is the motherof Accused no. 1. The Accused nos. 4 is brother of Accused no. 1 andAccused no. 5 is a wife of Applicant No.4. Accused No.6 is husband ofsister of accused no. 1. Accused No.7 is the sister-in-law of thecomplainant, accused No.8 is the husband of sister-in-law of thecomplainant, accused No.9 is the sister-in-law of the complainant,accused No.10 and 11 are parents of accused No.2. All the accusedwere having knowledge about subsistence of first matter of theaccused with the complainant. But all the accused are participatedwhile performing second marriage between the complainant and 5 of 9 (( 6 ))909-*Cri-Appln-4271-19, 535-20accused No.1. So also, accused Nos. 5, 10 and 11 acted as a witnesswhile performing second marriage of accused No.1 with the accusedNo.2 during subsistence of first marriage between accused No.1 andcomplainant. Therefore, question whether the accused Nos. 3 to 11were present while solemnization of second marriage of the Accusedno. 1 with 2 cannot be decided at this juncture without trial.Therefore, prayed for rejection of the application.8.Having regard to the submissions canvassed on behalf ofboth side I have gone the record. On perusal of the complaint it showsthat, the complainant specifically made averment that, on 01.05.2008her marriage solemnized with accused No.1 and out of saidmatrimonial relations, she blessed with first female child on14.04.2009. But thereafter accused No.1 raised cruelty against herfor non fulfillment of demand of dowry and was beaten mercilesslyand drove her out of matrimonial house on 01.05.2011. Thereaftershe started residing at her parental house. On 15.08.2011, she hasdelivered second female child. Thereafter, the complainant’s fatherpassed the message to the accused and then on 21.08.2011, theaccused Nos. 4 and 6 visited at her parental house to see the newbornchild. After the complainant’s inquired with accused Nos. 4 and 6 6 of 9 (( 7 ))909-*Cri-Appln-4271-19, 535-20that, when they would take the complainant for cohabitation withaccused No.1, but the accused Nos. 4 and 6 quarreled. The statementmade in the complaint further shows that, on 28.08.2011, thecomplainant’s husband accused No.1 performed second marriage withaccused no.2 during subsistence of her marriage and accused Nos. 3to 11 are actively participated while solemnization of secondmarriage ceremony though they were having knowledge aboutexistence of first marriage of accused No.1 with her. The accused Nos.5, 10 and 11 are acted as witnesses to the Nikahnama of secondmarriage between the accused No.1 and accused No.2.9.It is also not case of the Accused that, the Accused no. 1divorced the complainant at any time before or he obtained decree ofdivorce from the competent Court of law. Therefore, it prima facieappears about subsistence of marriage of the complainant with theAccused no. 1.10.Needless to say that in the case of S. Nitheen and othersVs. State of Kerala and another, 2024(8) SCC 706, the Hon'bleSupreme Court held that pre-charge evidence led in support of thecomplaint would reveal that the accused 3 and 4 were not evenalleged to be present at the time of such marriage, therefore, 7 of 9 (( 8 ))909-*Cri-Appln-4271-19, 535-20involvement of these accused persons of having a common intentionto commit an offence under Section 494 of I.P.C. is not established byan iota of evidence. So also, there is no even a shred of allegation bythe complainant that these accused persons acted as a witnesses tothe second marriage having knowledge that the accused No.1 wasalready married with the complainant.11.Section 204 of Cr.P.C. provides that if the Magistrate is ofopinion that sufficient material is available on record to proceedagainst the accused persons for taking cognizance, in thosecircumstances, the Magistrate has to issue the process. In case-in-hand, it prima-facie appears that the complainant has made outsubstantial case for issuance of process. 12.On 19.09.2017, the learned J.M.F.C. Court No.4, Paithan,District Aurangabad, passed an order after holding inquiry underSection 202 of Cr.P.C. and issued process against theApplicants/accused persons for the offence under Section 494 readwith Section 109 of I.P.C. On 28.11.2019, the learned RevisionalCourt passed the impugned order and upheld order dated 19.09.2017passed by the learned J.M.F.C. Both the Court concurrently held that,material produced on record disclose that the complainant is legally 8 of 9 (( 9 ))909-*Cri-Appln-4271-19, 535-20married to the accused no. 1 and during subsistence of theirmarriage, the accused no. 1 again performed second marriage withthe Accused no. 2 with the aid of accused nos. 3 to 11. 13.On perusal of impugned Judgment and Order dated28.11.2019 it shows that the learned Revisional Court consideredSection 13 of the Mohammedan Law which restraint on polygamy bylimiting the number of wives to four subject to the condition that allthe wives be treated justly and equitably and it not religious practiceor religious injunction directing Muslim for marrying more than onewife. A Second or subsequent marriage is permissible only with aview to care and compassionate treatment to a destitute female,orphan to make her life livable, if a Muslim man able to do justice nototherwise and the learned Revisional Court upheld order dated19.09.2017 passed by the learned J.M.F.C., which does not appearperverse, illegal, bad in law and no substantial grounds are set out tointerfere with the said findings. Therefore, both the Applications aredismissed. [ Y. G. KHOBRAGADE, J. ] SMS 9 of 9