GIRDHARI LAL Vs. VEENA SHARMA

JUDGEMENT

(1.) RESPONDENT No. 1, Smt. Veena Sharma, has filed a complaint against the petitioners 1 to 7 and proforma respondents 2 to 9 in the court of Judicial Magistrate Ist Class, Sub -Judge Samba seeking trial and punishment of the accused for commission of offences u/ss. 494/109 -RPC on the allegations that she was married to accused,Girdharilal,respondent No.1, on 27.2.1994 in accordance with Hindu law and rites. After the marriage she lived in the company of the accused and out of the wedlock a female child was born, who at the time of lodging the complaint was 6 -1/2 years old. However because of birth of the female child the attitude of the accused respondent No.1 became hostile and she was subjected to cruelty. She was forced to live along with her parents at her parental house at Samba. After some time the complainant of her own went to her matrimonial house at Billawar to join the society of her husband but there she was stunned to see her husband living with accused No.12, Mst.Sheela as husband and wife. According to the complainant accused No.1 had contracted second marriage with accused No.12 during the subsistence of his marriage with the complainant. She also alleged in the application that second marriage of accused No.1 with accused No.12 was abetted by other accused who are relations of accused No.1 as all of them knew that marriage between accused No.1 and the complainant was still subsisting, still they participated in the Barat etc. on 6.2.2003 when second marriage was solemnized. So they have also abetted the second marriage. According to the complainant the accused have committed offences u/ss 494/109 RPC, intentionally, knowingly and deliberately and therefore, are liable to be punished under law. In support of the complaint preliminary statements of the witnesses were also recorded by the learned trial court and on the basis of the allegations and the preliminary statements of the witnessed learned trial court by passing the order dated 25.4.2003 took cognizance against the accused for commission of said offences and issued the process for their summoning. Petitioners -accused aggrieved by the taking of cognizance and issuance of process have filed the present petition u/s 561 -A Cr.P.C. seeking quashment of the order dated 25.4.2003,with all consequential proceedings.

(2.) I have heard the learned counsel for the parties and perused the record of the case as well. The contention of Mr.Sakal Bushan, learned counsel for the petitioner is two fold; firstly he submits that in the complaint it has not been recorded by the complainant as to at what place the marriage took place. According to him it is only the place where the second marriage is contracted which determines the territorial jurisdiction on the magistrate for trial of an offence u/s 494 RPC. He has submitted that in the complaint the complainant has only alleged that the accused No.1 has contracted second marriage with accused No.12 without saying as to whether the second marriage was contracted according to rites and ceremonies under Hindu law by which the parties are governed. According to him for constituting an offence u/s 494 RPC it is necessary that the second marriage which is alleged to have been conducted must be a valid marriage. A marriage can be valid only if it is performed after solemnizing the ceremonies under personal law by which the parties are governed. Therefore, in absence of the averments in that behalf in the complaint it cannot be said that the second marriage is a valid marriage, if at all it is believed to have been conducted, no offence u/s 494 will stand constituted.

(3.) ON the other hand the contention of learned counsel for the complainant is that both the objections raised by learned counsel for the accused are factual objections which can be proved by leading evidence during trial before the trial court. He has further argued that the proceedings ordinarily should not be quashed at the threshold, as it would amount to denial of justice to the complainant simply on technical grounds.