The Allahabad High Court while allowing the petition said that to constitute an offence under Section 494 I.P.C, it is necessary that the second marriage should have been celebrated with proper ceremonies and in due form. The ‘Saptapadi’ ceremony under the Hindu Law is one of the essential ingredients to constitute a valid marriage.
A Single Bench of Justice Gautam Chowdhary passed this order while hearing a Criminal Revision filed by Nisha.
There is a delay of 275 days in filing the revision as per report of the Stamp Reporter.
The revision under Section 397/401 Cr.P.C has been filed with a prayer to quash the summoning order dated 20.02.2023 passed by the Additional Chief Judicial Magistrate, Agra in Complaint Case under Sections 494, 504, 506 I.P.C, Police Station Sikandra, District Agra.
The facts of the case are that on 05.12.2022 the opposite party No 2 filed a complaint case against the revisionist with the allegation that earlier revisionist had solemnized marriage with one Vijay Singh, and without obtaining any decree of divorce from any court of law and while her earlier husband is also alive, concealing these facts she has solemnized marriage with him in Arya Samaj Mandir according to Hindu rites and rituals and when it came into his knowledge he asked about the same from the revisionist then she threatened her for implicating him in false cases and she has also made demand of ten lakh rupees. On filing of the said complaint the court concerned, after recording statements of complainant and witnesses under Section 200 & 202 Cr.P.C summoned the revisionist for the offence under Sections 494, 504, 506 I.P.C, which is the subject matter of challenge in the revision.
A.G.A for the State as well as counsel for the opposite party No 2 have submitted that there is allegation against the revisionist for bigamy, therefore, after recording statements under Sections 200 & 202 Cr.P.C the court concerned has rightly summoned the revisionist, thus, there is no error in the order impugned and the same needs no interference.
The Court observed that,
Having heard the submissions of counsel for the parties and perusing the record, I find that so far as the second marriage of revisionist is concerned, it is well settled that the word ‘solemnize’ means, in connection with a marriage, ‘to celebrate the marriage with proper ceremonies and in due form’. Unless the marriage is celebrated or performed with proper ceremonies and due form, it cannot be said to be ‘solemnized’. If the marriage is not a valid marriage, according to the law applicable to the parties, it is not a marriage in the eyes of law.
Even there is no averment with regard to ‘Saptapadi’ in the complaint as well as in the statements under Section 200 and 202 Cr.P.C, hence, this Court is of the view that no prima facie offence is made out against the revisionist as the allegation of second marriage is a bald allegation without corroborative materials. In absence of cogent evidence in this regard, it is difficult to hold that the ‘Saptapadi ceremony’ of the marriage as contended by the complainant was performed so as to constitute a valid marriage between the parties concerned. As such on taking into consideration the contents of the complaint on its face value, the basic ingredients to constitute an offence under Section 494 of I.P.C are lacking, hence, no offence under Section 494 I.P.C is made out against the revisionist.
“On the aforesaid discussion, the Court is of the view that the criminal proceedings against the revisionist initiated by the opposite party No 2 under Section 494 I.P.C is nothing but a malicious prosecution with an ulterior motive, which is clear abuse of process of the Court, thus, summoning the revisionist under Section 494 I.P.C vide impugned order dated 20.02.2023 is not sustainable. The Court, under the facts and circumstances of the case, feels that it is the solemn duty of the Court to protect apparently an innocent person, not to be subjected to such frivolous prosecution on the basis of wholly untenable allegations and complaint, thus, if criminal proceeding initiated against the revisionist under Section 494 I.P.C is permitted to go on, the same will tantamount to causing grave miscarriage of justice, therefore in order to secure the ends of justice, the impugned criminal proceeding under Section 494 I.P.C initiated against the revisionist is liable to be quashed”, the Court further observed while allowing the petition.
“As a fallout and consequence of aforesaid discussion, the summoning order dated 20.02.2023 and further proceedings of Complaint Case, pending in the court of the Additional Chief Judicial Magistrate, Agra, so far as it relates to the provisions under Section 494 I.P.C is concerned, the same is hereby quashed. However, so far as the aforesaid criminal proceeding initiated against the revisionist in other provisions, i.e, under Sections 504, 506 I.P.C is concerned, the same shall go on and for the same revisionist is at liberty to appear before the court concerned and apply for bail”, the order reads.