OM PARKASH SHARMA Vs. JAGATJIT SINGH AHLUWALIA

JUDGEMENT

(1.) THE petitioners, ten in number, related to one female Neeru stand summoned for facing trial for offences under Sections 494 and 495 IPC on a complaint made by respondent Jagatjit Singh Ahluwalia. Petitioner No. 1 is father of Neeru, petitioner No. 2 is her mother, petitioner Nos.3, 5 and 7 are brothers of said Neeru, whereas petitioner Nos.4 and 6 are sisters-in-law and petitioner Nos.8 to 10 are sisters of Neeru. Neeru was married to respondent on 14.12.1998. Respondent claims that Neeru had told him that she had earlier married one Naresh Sharma, but they had mutually divorced each other on 23.4.1998 on the basis of an agreement, which was executed in the presence of respectables and elders. Out of this marriage between Neeru and the sole respondent, a son named Bharat Ahluwalia was born on 10.10.1999. Subsequently, dispute arose between the couple and Neeru was thrown out of the matrimonial home. Divorce petition was also filed on the ground that the marriage between Neeru and the respondent was nullity as she was having a living spouse at the time of contracting the marriage with the respondent. This petition was contested by Neeru but she ultimately lost and the marriage was declared a nullity. Against the said judgment, Neeru had filed an appeal before this court which is pending adjudication. In the meantime, respondent has filed a complaint in the court of Judicial Magistrate Ist Class, Jalandhar against Neeru and the present petitioners with the allegation that they are guilty of offences under Sections 494 and 495 IPC. The petitioners as well as Neeru have been summoned for offences under Sections 494 and 495 IPC. This order is impugned by the petitioners before this court. Incidentally, it may need a notice that Neeru has not challenged the said summoning order.

(2.) THE primary grouse of the petitioners, who are relatives of Neeru, is that they cannot be summoned and tried for offences under Sections 494 and 495 IPC. At the most, they could be summoned only for offence of abetment of these offences. Counsel for the petitioners contends that the petitioners could never be held guilty of offence of bigamy being related to Neeru. In support of his submission, the counsel has referred to the case of Sham Singh v. Sarbjit Kaur, 1998(3) RCR(Criminal) 78. It has been held by this court in this judgment that for offences of bigamy, only husband could be summoned for offence under Section 494 IPC and not others. It is further held that the other accused could be held liable for abetment under Section 109 IPC, but not for substantive offence. While taking this view, number of judgments have been taken note of and thereafter it is held as under :- "A perusal of Section 494 IPC aforesaid will go to show that the offence thereunder is committed by either spouse, who remarries during subsistence of a legal and valid marriage. The petitioners, other than petitioner No. 1/Sham Singh could not be summoned under Section 494 IPC. They could be summoned only under Section 109 IPC, which provides for punishment for abetment to commit a crime. Section 109 IPC reads as under :-