MANJU KHULLAR Vs. VIJAY KUMAR KHULLAR

JUDGEMENT

(1.) After hearing learned Counsel for the parties, I propose to dispose of this revision petition at the stage of admission itself.

(2.) The facts giving rise to this revision are that on 13.11.1979, the petitioner entered into wedlock with the respondent. On 9.11.1987, the petitioner filed a divorce petition against the respondent on the ground of cruelty and harassment. In January, 1988, the respondent entered appearance and filed an application before the Matrimonial Court stating that the marriage had been dissolved by a decree dated 29.10.1984 granted by the District Judge, Hamirpur, Una (HP). Thereupon the petitioner filed an application before the District Judge, Hamirpur, Una (HP) for setting aside the said ex parte decree. During the said proceedings the respondent made a statement about his marriage with Ms. Suresh Kumari @ Suresh Khullar on 14.10.1988. By the order dated 4.11.1989, the District Judge, Hamirpur, Una (HP) set aside the ex parte decree dated 29.10.1984. Thereafter, the respondent withdrew the suit for divorce as a result whereof the same was dismissed as withdrawn vide orders dated 15.11.1989. After dismissal of the said suit, the petitioner filed a complaint under Sections 494/497/120-B, Indian Penal Code against the respondent. By the order dated 27.10.1997, the Metropolitan Magistrate, New Delhi directed framing of charges under Sections 494/497, Indian Penal Code against the respondent. Aggrieved by the said order, the respondent moved the Additional Sessions Judge, New Delhi by filing a revision petition which was allowed and the respondent was discharged vide orders dated 18.9.1998. Feeling aggrieved, the petitioner has come up in revision before this Court.

(3.) Assailing validity of the impugned order, learned Counsel for the petitioner contended that the evidence adduced by the petitioner makes out a prima facie case under Section 494 Indian Penal Code against the respondent and the learned Additional Sessions Judge has committed a manifest illegality in setting aside the order dated 27.10.1997 passed by the Metropolitan Magistrate directing framing of charges under Sections 494/497, Indian Penal Code against the respondent. It is undisputed that on 13.11.1979, the petitioner was married to the respondent; that on 9.11.1987, the petitioner filed a divorce petition against the respondent; that the respondent resisted the divorce proceedings contending that his marriage with the petitioner stands dissolved by an ex parte decree dated 29.10.1984 granted by the District Judge, Hamirpur, Una (HP); that on petitioner's application, the said ex parte decree was set aside and the suit was restored vide orders dated 29.10.1984 passed by the District Judge, Hamirpur, Una (HP), and that thereafter the said suit was dismissed as withdrawn by the respondent. It is also undisputed that during pendency of the said proceedings the respondent made a statement regarding his marriage with Ms. Suresh Kumari @ Suresh Khullar on 14.10.1988. It is alleged that the said admission of the respondent alone is sufficient to make out a case under Section 494, Indian Penal Code against him and the learned Additional Sessions Judge has committed a patent illegality in discharging the respondent. Learned Additional Sessions Judge, relying on the decision rendered by the Supreme Court in Laxmi Devi Vs. Satya Narayan and others (1994) 5 SCC 545, has held that validity of the respondent's second marriage with Ms. Suresh Kumari @ Suresh Khullar has not been proved by cogent evidence and in the absence of proof of the ceremony of the marriage, mere admission of marriage by the respondent is not sufficient to fasten criminal liability on him in respect of the offence punishable under Section 494, IPC.