PADI Vs. UNION OF INDIA

JUDGEMENT

(1.) This reference and reference No. 11 of 1962 have been made by the learned Sessions Judge Mahasu recommending that the charge framed against the petitioners for offences under Sections 494 and 494 read with Sections 109, 114 and 116, I. P. C., be quashed. Charges under the aforesaid sections were framed against Smt. Padi, Sarvashri Narainu, Chet Ram, Paras Ram, Kehru, Ram Dass and Dip Ram. Two separate applications in revision against the aforesaid order were filed one by Smt. Padi, Sarvashri Chet Ram, Paras Ram, Dip Ram and Ram Das and the other by Sarvashri Kehru and Narainu--which were disposed of by the learned Sessions Judge by a common judgment and I propose to dispose of both the references by this order.

(2.) Briefly stated the facts giving rise to these references were that Kharia was married to Smt. Mathi about 20 years back. On 8th Manghar 2017 B. after the coming into force of the Hindu Marriage Act 1955 he contracted a marriage with Smt. Padi. Shortly after the aforesaid marriage Smt. Padi left her husband's house and went to her parent's house and contracted marriage with Narainu respondent No. 2. The aforesaid Kharia filed a complaint against the petitioners and two others. The learned Magistrate framed a charge for offences under Sections 494 and 494 read with Sections 109, 114 and 116, I. P. C. against the petitioners who filed two applications in revision against the aforesaid order and the learned Sessions Judge made the references under consideration.

(3.) It has not been disputed that the petitioner was married to Smt. Mathi about 20 years back or that she was alive at the time when he married Smt. Padi or that the last mentioned marriage took place after the coming into force of the Hindu Marriage Act 1955. Section 5 of the aforesaid Act inter alia provides that a marriage may be solemnized between two Hindus if neither party has a spouse living at the time of the marriage. Section 11 thereof lays down that any marriage solemnized after the coming into force of the Act shall be null and void and Section 17 emphasizes that any marriage between two Hindus solemnized after the commencement of this Act is void if at the date of such marriage either party has a husband or wife living and applies the provisions of Sections 494 a nd 495 of the Indian Penal Code. The conjoint effect of the aforesaid sections is that if a marriage is solemnized after the commencement of the Hindu Marriage Act between persons either of whom has a spouse living at the time of the marriage the marriage is void and the provisions of Sections 494 and 495 are attracted to marriages between Hindus also. In the instant case it has already been noticed that at the time when the petitioner married Smt. Padi his wife Smt. Mathi was alive and there is thus no escape from the conclusion that the marriage between the petitioner and Smt. Padi was void. A thing which is void has no existence in the eye of law. Since in the eye of law the relationship of husband and wife did not exist between the petitioner and Smt. Padi her subsequent marriage with another person will not attract Section 494, I. P. C.