PADAM KUMAR Vs. STATE OF HARYANA

JUDGEMENT

(1.) THIS order shall dispose of CRM Nos. 54778-M of 2004 and 65729-M of 2005.

(2.) THE facts have been taken from CRM No. 54778-M of 2004. Petitioner Padam Kumar has filed CRM No. 54778-M of 2004. His wife Smt. Kamlesh Rani, daughter of Sham Lal Gupta along with her mother-in-law and brother-in-law have filed the second petition referred to above. Quashing of complaint dated 24.10.2000 and summoning order dated 14.7.2004 passed by JMIC Ludhiana is sought in both the petitions. A complaint was filed by Smt. Anoop Mala complainant-respondent No. 2, ex-wife of Padam Kumar petitioner, with the allegation that Padam Kumar has contracted second marriage with Kamlesh Rani and thus both are guilty of offence under Section 494 IPC. The admitted facts of this case are that Petitioner Padam Kumar married complainant-respondent No. 2, Smt. Anoop Mala on 29.10.1981. A daughter and a son were born out of this wedlock on 15.9.1982 and 6.11.1983 respectively. Complaining that his wife had deserted him, the petitioner Padam Kumar filed an application under Section 9 of the Hindu Marriage Act for restitution of his conjugal rights in the year 1984. Complainant-respondent No. 2 Anoop Mala though served but did not appear and was proceeded ex parte. The decree of restitution of conjugal rights was thus passed on 13.6.1984. Despite this decree in favour of petitioner Padam Kumar, respondent No. 2-wife did not join his company and the parties thereafter never cohabited. The petitioner Padam Kumar then filed a petition for dissolution of marriage under Section 13 of the Hindu Marriage Act on 15.6.1985. Complainant-respondent No. 2-wife was served but again chose not to appear. She rather refused to accept summons. Smt. Anoop Mala was served at the same address as given by her in the complaint now filed under Section 494 IPC. In the divorce petition also, she was proceeded ex parte. Petitioner Padam Kumar, accordingly, was granted decree of divorce on 30.10.1985. Thus, the marriage between petitioner Padam Kumar and Smt. Anoop Mala, respondent No. 2 stood dissolved with effect from 30.10.1985. Thereafter, Petitioner Padam Kumar contracted a second marriage with one Usha Rani on 9.8.1986. Unfortunately the said lady died on 9.8.1987. Padam Kumar then married yet again with Smt. Kamlesh Rani, petitioner in one of the petitions, on 2.9.1987. Out of this wedlock, a son and two daughters are born. The daughter was born in the year 1989 followed by a son in the year 1991 and then second daughter in the year 1993. The elder daughter born out of the wedlock between petitioner Padam Kumar and respondent No. 2 was married by Padam Kumar and she is having two children of her own.

(3.) THE counsels for the parties are heard. During the course of arguments, counsel for respondent No. 2 could not dispute the fact that the marriage between petitioner Padam Kumar and respondent No. 2 had been dissolved when the decree of divorce was passed and that marriage between petitioners Padam Kumar and Kamlesh Rani was performed during the period when there was no subsisting marriage between petitioner Padam Kumar and respondent No. 2. He, however, by referring to Annexure R-2/2, sought to contend that this case needed to be appreciated in the background, under which, petitioner Padam Kumar was able to achieve this purpose by managing an ex parte decree of divorce.