URMILA DEVI Vs. BHIMA RAM

JUDGEMENT

(1.) This Criminal Revision is directed against the order dated April 11, 1987 of the learned Sub- Divisional Judicial Magistrate, Rampur Bushahar whereby he discharged the accused in a complaint filed under Sections 493 and 495 I.P.C. The complaint had been made by Urmila Devi alleging that accused Bhima Ram took her to Narmand on January 18, 1986 by offering an allurement of marriage. He had two residential houses there and kept her in one of them situated at a distance of one kilometer from the other. He kept her in total darkness about the factum of his first marriage and also that he had his first wife and three children from her alive. -In fact, he represented that he was unmarried. Thus, through deceitful means, he married her according to custom on February 25, 1986 when an agreement of marriage was also prepared and handed over to her. In this way, he committed offence punishable under Sections 493 and 495 I.P.C.

(2.) In support of the above allegations, Urmila Devi her Self stepped into the witness box as P.W. 1 and also examined P.W. 2 Shyam Lal and P.W. 3 Khushal Singh in support of her case. The learned trial Magistrate, however, was of the view that the complainant was not an aggrieved person within the ambit of Section 198 of the Code of Criminal Procedure and, therefore, proceeded to discharge the accused by his judgment, which is presently under challenge. While doing so, he relied upon the law laid down by the Punjab and Haryana High Court in Jarnail Singh v. Swaran Kaur1.

(3.) In view of what has been stated above, the only point which requires determination at this stage for the purpose of disposal of the present revision petition is if Urmila Devi is an aggrieved person and can maintain the complaint institute by her. Now Sections 494 and 495 of the Penal Code read as follows: 494. Marrying again during lifetime of husband or wife- Whoever, having a husband or wife living, marries in any case in which such marriage is void by reason of its taking place during the life of such husband or wife, shall be punished with imprisonment of either description for a term which may extend to seven years and shall also be liable to fine. Exception- This Section does not extend to any person whose marriage with such husband or wife has been declared void by a Court of competent jurisdiction, nor to any person who contracts a marriage during the life of a former husband or wife, if such husband or wife, at the time of the subsequent marriage, shall have been continually absent from such person for the space of seven years, and shall not have been heard of by such person as being alive within that time, provided the person contracting such subsequent marriage shall, before such marriage takes place, inform the person with whom such marriage is contracted of the real state effects so far as the same are within his or her knowledge. 495. Same offence with concealment of former marriage from person with whom subsequent marriage is contracted- Whoever commits the offence defined in the last preceding section having concealed from the person with whom the subsequent marriage is contracted, the fact of the former marriage, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine. There is hardly any scope for doubt that the very case of the complainant is that accused Bhima Ram had a wife living on February 25,1986 and further that he married her inspite of the above fact. If so, such marriage is void ab initio under the provisions of the Hindu Marriage Act, which applies to the parties. An offence under Section 494 is, therefore, prima facie made out. This offence, however, takes an aggravated form where the fact of former marriage is concealed from the person with whom the subsequent marriage is contracted. This precisely is Urmila Devis case. Therefore, commission of offence under Section 495, I.P.C. is prima facie disclosed on the averments made in the complaint and the primary evidence tendered in support thereof. The very language of Section 494 ibid shows that the woman with whom second marriage is sought to be contracted is the victim. She is certainly an aggrieved person within the meaning of Section 198 of the Code of Criminal Procedure. It may also be noted here that the law laid down in Jarnail Singh relied upon by the Court below has been over-ruled by a Division Bench of the Punjab and Haryana High Court itself in Balbir Singh v. Darshana Kumari2