DURGAWATI Vs. STATE

JUDGEMENT

(1.) THIS application under Section 482 Criminal Procedure Code is directed against an order dated 7-11-1977 of the Court of Mr. Ram Nath Misra, Special Judicial Magistrate 1st Class, Varanasi, discharging the opposite parties Nos. 4 to 10 in a complaint case brought by the applicant principally against her husband Bhagelu, opposite-party No. 4, for having committed an offence punishable under Section 494 Indian Penal Code. Opposite Parties Nos. 5 to 10 were joined for having abetted the offence. Opposite Party No 7 Smt. Munni Devi, was alleged to be the woman who Bhagelu had remarried in spite of the applicant, his wife, being living. The learned Magistrate found that the applicant had not proved herself to be the lawfully-wedded wife of Bhagelu according to the Hindu Marriage Act; that Bhagelu already had a wife Smt. Yashoda Devi married before the alleged marriage of the applicant with him and that rendered the marriage of the applicant with Bhagelu void in accordance with the provisions of the Hindu Marriage Act, that the applicant had not proved the marriage of Smt, Munni Devi with Bhagelu in accordance with the provisions of the Hindu Marriage Act and the story set up by the applicant that she had gone to Suit. Munni Devi's house on 9-3-1976 to stop her marriage with Bhagelu appear to be connected and it was accordingly not proved that Bhagelu had remarried Smt, Munni Devi although he had a wife living. The applicant's revision against the said order of the learned Magistrate was dismissed by the Court of the VII Addl. Sessions Judge, Varanasi, by an order dated 4th May 1978 on the finding that the applicant was not the legally-wedded wife of Bhagelu on account of the fact that he already had a wife living in the person of Smt. Yashoda Davi and that in view of this, the applicant was not competent to file the complaint. When the matter was first heard by me in October 1979, I had taken the view in Second Appeal No. 1127 of 1976, Smt. Sheet Wati v. Smt. Ram Nandani and another, decided on 12-11-1980, that so long a bigamous marriage is not declared to be null and void by a decree of nullity, on a petition presented by either party thereto, against the other, under Section 11 of the Hindu Marriage Act, 1955, the marriage continued to be a subsisting fact and its validity could not be questioned by any other manner of proceeding or by any other person who was not a party to the marriage. I had accordingly referred a question raising that point for consideration by a larger bench in that second appeal. Since the alleged marriage between the applicant and Bhagelu, the opposite party No. 4 in this case, had not been so declared to be null and void by a decree of nullity, it could not be regarded to be a nullity merely on the ground that Smt. Yashoda Devi, the alleged first wife of Bhagelu, was believed to be living when the applicant was said to have been married to Bhagelu. By my order dated 15-12-1979, I directed that the hearing of this application shall await the answer given by the larger bench to the question referred in that second appeal. I may add that the applicant had also filed an application under Section 125 Criminal Procedure Code for an order of maintenance. That was allowed by the Court of the Special Judicial Magistrate 1st Class, Varanasi, by order dated 24-11-1978and a maintenance order for paying Rs. 100/- per month with effect from 6-2-1976 was passed against him. The revision filed by Bhagelu against that order was dismissed by the Court of Session at Varanasi on 2-12-1978. It appears that a second revision was filed in this Court. That was dismissed on 27-3-1979 as not maintainable, without going into merits of the case. An application under Section 482 Criminal Procedure Code being Crl. Misc. Case No. 2195 of 1979 was thereupon filed in this Court. It was admitted on 6-4-1979 and the operation of the maintenance order was suspended. In that case the learned Magistrate had held that the marriage of Bhagelu with Smt. Yashoda Devi was dissolved by Chutta Chutti in accordance with the caste custom and, therefore, the applicant was Bhagelu's wife and was entitled to an order of maintenance which is fixed at Rs. 100/- per month. Bhagelu had pleaded in that case that the applicant was not lawfully-wedded to him, but was only his mistress and that his lawfully-wedded wife Smt. Yashoda Devi was living. The allegation of Chutta Chutti was denied as false. The allegation that he married Smt. Munni Devi was also denied. I felt that the matter of dissolution of marriage in accordance with the custom of Chutta Chutti was sometimes taken rather lightly and would have liked to satisfy myself by looking at the record before endorsing the finding of the learned Magistrate that the marriage of Bhagelu with Smt. Yashoda Devi was dissolved by the customary rites of Chutta Chutti. But, in the view that I took about the validity of a second marriage, solemnised while the wife of the first marriage was still living, so long as the second marriage was not declared null and void by a decree of nullity on a petition presented by either party there against the other under the Hindu Marriage Act, I directed, by another order dated 15-10-1979 that the said Crl. Misc. Application No. 2195 of 1919 should also await the result of the reference made by me in Second Appeal No. 1127 of 1976. On the reference made by me in the Second Appeal No. 1127 of 1976 the Hon'ble the Chief Justice did not consider the case to be a fit one to need the attention of a Division Bench and sent the matter back to me for being diposed of in accordance with law. I heard Second Appeal No. 1127 of 1976 over again and by my judgment dated 12-11-1980, for the reasons contained in my referring order dated 27-9-1979, as also in that judgment, I held that a marriage, though null and void for contravening any of the conditions prescribed by Clauses (i) (iv) (v) of Section 5 of the Hindu Marriage Act, has yet to be regarded as a subsisting fact and in that sense it could not be said to be nonest in law or a nullity so long as it is not declared to be null and void by a decree of nullity of the District Court under the Hindu Marriage Act, on a petition presented by either party against the other party to the marriage. The marriage must, so long as it is not so declared to be null and void by a decree of nullity, be regarded as a subsisting factand, the parties thereto, husband and wife for all purposes. In view of the said decision, the order of the learned Additional Sessions Judge Varanasi upholding the discharge of opposite parties Nos. 4 to 10 on the ground that the applicant Smt. Durgawati was not the lawfully-wedded wife of Bhagelu, the opposite party No. 4and was on that account not competent to file the complaint, is erroneous. Nevertheless, it was argued by Mr. G. C. Dwivedi on behalf of opposite parties Nos. 4 to 10 that the learned Magistrate had, on a consideration of the evidence led before him under Section 244 Criminal Procedure Code, found that the applicant had not succeeded in proving either that she was married to Bhagelu, that Bhagelu had remarried Smt. Munni Devi although she, the applicant, a wife of Bhagelu, was living It is well-settled that the due solemnization of the bigamous marriage complained of, with all the necessary ceremonies and rites, has to be established as a fact by the complainant and even the factum and validity of the complainant's own marriage with the accused has also to be proved in case the same is not admitted by the accused. According to the findings, recorded by the learned Magistrate, neither the factuin of the due solemnization of her marriage with Bhagelu, nor the factum of the due solemnization of the marriage of Smt. Munni Devi with Bhagelu, were proved by the evidence led by the applicant. Under these circumstances, even if the factum of the due solemnization of the marriage of the applicant with Bhagelu, at a time when his first wife Smt. Yashoda Devi was still living, was provedand the applicant was, on proof of that fact held entitled to prosecute the complaint as a person aggrieved, within the meaning of Section 198 Criminal Procedure Code by the alleged third marriage of Bhagelu with Smt. Munni Devi, the accused-opposite panics were yet entitled to be discharged for want of proof of the due solemnization of the alleged third marriage of Bhagelu with Smt. Munni Devi. THIS application must, therefore, fail and is accordingly dismissed. .