KUNTI DEVI Vs. SOM RAJ

JUDGEMENT

(1.) Leave granted.

(2.) Appellant calls in question legality of the judgment passed by a learned single Judge of the High Court of Jammu and Kashmir quashing the proceedings registered on the basis of a complaint filed by the appellant, in exercise of powers under Section 561-A of the Jammu and Kashmir Code of Criminal Procedure, 1989 (in short JandK Cr.P.C.) which is akin to Section 482 of the Code of Criminal Procedure, 1973 (in short the Code).

(3.) Background facts necessary for disposal of the appeal in a nutshell are as follows : The appellant (hereinafter referred to as the wife) and respondent No.1 (hereinafter referred to as the husband) entered into wedlock on 8-5-1989. Alleging that the husband had abandoned her company, the wife filed a petition under Section 9 of the Hindu Marriage Act, 1955 (in short the Marriage Act) for restitution of conjugal rights. The husband also filed a similar petition on 11-2-1994. The petition filed by the wife was dismissed under Order IX, Rule 8 of the Code of Civil Procedure, 1908 (in short the CPC, as the husband agreed to take the wife along with him. The order was passed on 24-11-1995. On 15-12-1995, the husband filed a petition under Section 13 of the Marriage Act, inter alia, praying for a decree of dissolution of marriage in the Court of learned Additional District Judge, Gurdaspur. By judgment dated 9-3-1999, the learned Additional District Judge, Gurdaspur passed a decree for dissolution of marriage on the ground of desertion. On 8-12-1999, an appeal was filed in terms of Section 29 of the Marriage Act before the Punjab and Haryana High Court. A prayer was also made for staying operation of the decree dated 9-3-1999. It was also prayed that the husband should be restrained from re-marrying. As there was delay in filing the appeal, the High Court first took up the application for condonation of delay. By a detailed order dated 14-8-2000 in CM No.945-C1 of 2000 in FAO No.14-M of 2000, the delay was condoned. The condonation application was taken up after due notice to the respondents in the first appeal and learned counsel for the parties were heard on the question of condonation of delay. Subsequently on 24-11-2000, the High Court passed an order that the husband shall not re-marry till further orders and the operation of the judgment and decree passed by the learned Additional District Judge, Gurdaspur was stayed. This order has great relevance to the dispute involved in the present appeal. Subsequently, according to the wife, the husband re-married on 8-3-2001. The decree of divorce passed by the learned Additional District Judge, Gurdaspur was set aside by the High Court by judgment dated 1-5-2001. During the pendency of the appeal, on 19-7-2000, a plea was taken by the husband before the High Court that he had already remarried after the decree of divorce was passed. On 19-7-2000, a Division Bench of the High Court adjourned the matter to 27-7-2000 to produce the certificate of marriage, as in the affidavit of the husband, it was not stated that he had re-married or when he had re-married. Apparently, the relevant details were not brought to the notice of the High Court. Subsequently, as noted above, on 14-8-2000, the Court condoned the delay in filing of the appeal and passed the order of restraint on 24-11-2000. On 22-11-2001, a complaint was filed before the learned Chief Judicial Magistrate, Jammu alleging commission of offence punishable under Section 494 of the Ranbir Penal Code, 1989 (1932 AD) (in short the RPC) read with Section 109, RPC alleging that during subsistence of a valid marriage, the husband had contracted second marriage with respondent No.3-Smt. Usha on 8-3-2001. The learned Judicial Magistrate Ist Class-cum-Sub-Judge, Jammu took cognizance of the offence and issued bailable warrants against accused No.1 (the husband, accused No.2 (father of the husband) and accused No.4 (father of Smt. Usha). Though in the complaint, eight persons were named as accused persons, as noted above, bailable warrants were issued in respect of three persons and it was noticed that the offence punishable under Section 494, RPC was exclusively triable by the Court of Session. The date for appearance before the Court of Session was fixed to 15-3-2001. All the eight persons, who were impleaded as accused persons in the complaint petition filed a petition in terms of Section 561-A primarily on the ground that after passing of the decree, and before the same was set aside by the High Court of Punjab and Haryana on 1-5-2001, the marriage between the husband and Smt. Usha was solemnized. Placing reliance on a decision of this Court in Krishna Gopal Divedi vs. Prabha Divedi, AIR 2002 SC 389, it was held by the High Court that the offence punishable under Section 494, RPC was not made out. Accordingly, the proceedings on the basis of the complaint in File No.142 instituted on 24-11-2001 pending before the learned Judicial Magistrate-cum-Sub-Judge, Jammu and the order dated 12-2-2003 taking cognizance of the offence and directing process were quashed.