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W.P.(CRL) 3373/2017 & Cr1.
M.A. No. 19845/2017
M.A. No. 19867/2017
M.A. No. 19870/2017
VINOD KUMAR Petitioner
Through: Mr. Vikrarn Dua, Advocate with Petitioner in person.
Through: Mr. Sanjay Lao, Additional Standing Counsel (Cr1.) and Mr. Siddharth, Advocate for State with SI Ishwar
Singh, P.S. Jaitpur and SI B.D.
Meena, P.S. Badarpur.
Mr. P.C. Jha and Mr. S.C. Joshi, Advocates for Respondent No.2 with
Respondent No. 2 in person.
01.12.2017 These petitions seek quashing of three FIRs bearing No. 0344/2016, 0237/2016 and 0283/2016 arising out of a matrimonial discord between the parties. It is claimed that the us has since been settled between the parties, and a decree of divorce by mutual consent has been granted. All monies in terms of the settlement have been paid to the respondent No.2, and have been appropriated by her with no claim of the petitioners' thereon. She is present in the Court and has been identified by the Investigating Officer.
The learned counsel for the State submits that two of the FIRs i.e.
2017:DHC:8344 0237 and 0283 of 2016 relate to offences under section 376 IPC; while FIR
No.0344/20 16 was initially recorded for the offences punishable under sections 354/323/506 IPC and section 307 IPC was added to it later.
Mr. Lao, the learned Addl. Standing Counsel (Cr1.) for the State, draws the Court's attention to the nature of the allegations, particularly, the fact that the petitioner was already married and had contracted a bigamous relation in the form of a second marriage in an Arya Samaj Mandir on
12.10.2015 with the complainant, who had converted her religion - apparently for the sake of the marriage; the complainant was subjected to repeated violations of her body, culminating into offences punishable under section 376 IPC; as well as an attempt to murder her; causing miscarriage of her pregnancy by merciless brutal assaults on her; crimes for which the petitioner would be also punishable under sections 3 13 and 328 IPC.
The nature of the allegations in FIR No.0344/20 16 are that, for the offences committed against her by the petitioner Vinod Kumar, the complainant/ respondent No. 2 did not object to his release on bail in FIR
No.237/2016 since the petitioner and his family had assured her that they would keep her with them, but reneged on the assurance and breached the promise to let her reside in a matrimonial home, i.e. where the petitioner regularly lived with his father and mother. She 'was shunned by them. Later
ID she came to know that the petitioner was already married and had a living spouse. She alleges that she was beaten by the petitioner repeatedly and her pregnancy from her "marital relationship" with the petitioner had to be terminated on the night of 30.08.2016. It is also alleged that the petitioner had also brutally beaten her and then hanged her by neck so that she would
1- die. But fate willed otherwise. Fortunately, she was saved by her landlord.
Mr. Lao submits that charges against the petitioner are serious; the chargesheet is ready and is likely to be filed in a month's time. Let it be so done.
On the face of it, these complaints contain all the ingredients of victimisation of a vulnerable woman i.e. rape, coercive unnatural sex, attempt to murder, bigamy, fraud, etc. The petitioner while being married, contracted a second marriage with the complainant who believed that she was marrying a man who was not married. She submitted to him physically in consummation of their marriage, under the belief that she was legally married to him. This marriage, however, was a deceitful charade, with the sole objective of taking advantage of the complainant's vulnerability. Under
Section 5(1) of the Hindu Marriage Act, 1955, a marriage can be solemnized between any two Hindus only if neither party has a spouse living at the time of the marriage. The petitioner had a spouse living from his previous marriage, hence he could not have contracted a valid marriage under the said
Act. Therefore, under Section 11 of the Hindu Marriage Act, the second marriage would be a void marriage.
The petitioner's case is that the second Hindu marriage has been dissolved by a decree of divorce by mutual consent. Exfacie, this decree of divorce would be an exercise in futility because the second marriage was void. However, the petitioner had hidden the factum of his subsisting marriage from the complainant. He knew all along, that the second marriage was dishonest and devoid of legitimacy. It was a stratagem to exploit the complainant's body, her affections and trust, because after her conversion
W.P.(CRL) 3373/20 17 & connected matters and the marriage in an Arya Sarnaj Mandir, she believed that she was entering into a lawful marital relationship with her husband (the petitioner), whereas in reality and in law, he was riot her husband. Therefore, exfacie the petitioner would be liable for prosecution under Section 493 of the JPC which reads as under:
ORDER
8. In Rum Cliundra Bhugat v. State of J/iark/iand (2013) 1 SCC As 562, the Supreme Court observed that for an offence to be made out under Section 493 IPC, the accused should have deceitfully induced a belief to a woman that she is his lawful wife and must cohabit with that person. The relevant portion reads as under: "18. As we are concerned with thge provisions of Section 493 of the Indian Penal Code, it would be just and proper to look at the said section beftre we deal with the subject.
493. Cohabitation caused by a man deceitfully inducing a belief of lawful marriage. —Every man who by deceit causes any woman who is not lawjiilly married to him to believe that she is lawfully married to him and to cohabit or have sexual intercourse with him in that belief, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.
19. Upon perusal of Section 493 of the Indian Penal c[2] Code, to establish that a person has committed an offence under the said Section, it must be established that a person had deceitfiuily induced a belief to a woman, who is not lawfully married to him, that she is a lawfully married wife of that person and thereupon she should cohabit or should have had sexual intercourse with that person. Looking at the aforestated section, it is c/ear that the accused must induce a woman, who is not lawfully married to him, to believe that he is married to her and as a result of the aforestated representation, the woman should believe that she was lawfully married to him and there should be cohabitation or sexual intercourse as a result of the deception..."
9. Furthermore, the petitioner is also liable to be prosecuted under Section 494 of IPC because he knowingly contracted a second marriage during the lifetime of his wife from his earlier subsisting marriage. This As provision reads as under:-
W.P.(CRL) 33732017 & connected matters Page 5 o17
10. As a corollary to the aforesaid provision of law, section 495 IPC reads as under:
bigamous marriage among persons governed by the said Act to be void and makes it punishable under the anti-bigamy provisions of the IPC. It reads as under: AS '17 Punishment of bigamy. Any marriage between two Hindus solemnized after, the commencement of this Act is void if at the date of such marriage either party had a husband or wife living; and the provisions of sections 494 and 495 of the Indian Penal Code (45 of 1860), shall apply accordingly." The incorporation of anti-bigamy provisions by the architects of the IPC was influenced by English Law i.e. the Offences against Persons Act, 18281, which sought to enforce it stringently, without any exceptions. Following the enactment of the India Penal Code in 1860, the provisions concerning the penalisation of bigamy, i.e. sections 494 and 495 have remained substantially unamended. The Indian Parliament enacted the Hindu Marriage Act, 1956, banning bigamy for those covered under the said statute. It declared such marriages to be void. Under the law applicable to S.W. BaOholomew, 'lhc Origin and Development ol the Law of Bigam ". 74 Law Q. Rev. 259 (1958) referred to in, "Vice of Bigam\ and Indian Penal Code: Ramiflcations ofan Archaic La ": Kiran B. lain 32 JILl 386. 387 (1990) WP.(CRL) 3373/20 17 & connected matters q- Hindu marriages, bigamy is prohibited and entails penal consequences. In the aforesaid circumstances, it would not be in the interest of justice to quash the FIRs. Accordingly, the petitions are dismissed, The learned counsel for the State submits that he would request the Court concerned for expeditious trial of the case. Nothing stated in this order shall be deemed to be an adjudication on the merits of the case. / NAIWAZIRI, J. DECEMBER 01, 2017 sb W.P.(CRL) 3373/2017 & connected matters Page 7 o17 fr