The Allahabad High Court while allowing an application observed that it is well settled that to constitute an offence under Section 494 I.P.C, it is necessary that the second marriage should have been celebrated with proper ceremonies and in due form. The ‘Saptapadi’ ceremony under the Hindu Law is one of the essential ingredients to constitute a valid marriage.
A Single Bench of Justice Sanjay Kumar Singh passed this order while hearing an application under section 482 filed by Smriti Singh Alias Mausami Singh and 3 Others.
The application under Section 482 Cr.P.C has been filed by the applicants with a prayer to quash the summoning order dated 21.04.2022 and proceedings of Complaint Case under Sections 494 and 109 I.P.C, Police Station Sigra, District Varanasi, pending in the Court of the Civil Judge (J.D) F.T.C, Varanasi.
The facts of the case are that on 05.06.2017, marriage of the complainant/opposite party no 2-Satyam Singh was solemnized with the applicant no1-Smriti Singh alias Mausami Singh as per Hindu Rites and Rituals but their marriage was not successful and on account of acrimonious relation and matrimonial dispute, applicant no 1 lodged a first information report on 30.06.2017 registered at Case under Sections 498-A, 323, 504, 506, 354 I.P.C and Sections 3/4 Dowry Prohibition Act, at Police Station-Kotwali Dehat, District Mirzapur against opposite party no 2 and his other family members namely Kaushlendra Pratap Singh, Suman Singh and Shivam Singh @ Banti making allegations inter-alia of her harassment and torture by the accused persons adopting different modus-operandi as well as demand of additional dowry. In the F.I.R, it is also alleged that on account of nonfulfillment of their demand of dowry, she was ousted from her matrimonial home on 22.06.2017.
After culmination of investigation, a charge-sheet dated 24.01.2018 has been submitted against all the accused persons named in the F.I.R dated 30.06.2017. The said charge-sheet was challenged by the accused persons including opposite party no 2 by filing an Application under Section 482 Cr.P.C, in which the matter was referred to mediation and conciliation centre vide order dated 10.01.2019 but the mediation between the parties concerned has failed.
The applicant no 1, in addition to F.I.R dated 30.06.2017, also filed a Criminal Misc Case under Section 125 of Cr.P.C before the Principal Judge, Family Court, Mirzapur which was decided ex-parte by the Family Court vide order dated 11.01.2021 and the opposite party no 2 (husband of applicant no 1) was directed to pay a sum of Rs 4,000/- per month to his wife (applicant no 1) until she gets remarried.
Thereafter, opposite party no 2 gave an application before the Higher Police Officials making allegations of bigamy against his wife-Smriti Singh @ Mausami/applicant no 1. The said application was thoroughly investigated by the Circle Officer Sadar, District Mirzapur and allegations of bigamy etc against the applicant no 1 was found false.
Accordingly, an inquiry report dated 06.01.2021 was submitted by Circle Officer Sadar, Mirzapur to the Superintendent of Police, Mirzapur. After that the complainant/opposite party no 2 filed a complaint dated 20.09.2021 against the applicants as well as against Mahant Singh @ Raghvendra Singh, Jhallar Singh, Vimla Devi, Ramjit Singh and six-seven other unknown persons for the alleged offence under Sections 494 and 109 I.P.C making allegations inter-alia that the applicant no 1-Smriti Singh @ Mausami Singh had sanctified her second marriage on 03.09.2017 with Mahant Singh @ Raghvendra Singh s/o Jhallar Singh r/o Village Bhikharipur, Police Station Kachwa, District Mirzapur in the house of Ramjit Singh situated in District Varanasi in accordance with Vidhivat Hindu Dharma Shastra and she is living with her second husband without taking divorce from him.
The Magistrate, after recording the statement of the complainant under Section 200 Cr.P.C and his witnesses namely Kaushlendra Pratap Singh and Suraj Kumar Rai as respectively, summoned the applicants as well as other co-accused persons under Sections 494/109 I.P.C vide order dated 21.04.2022, which is the subject matter of challenge in the application.
The Court observed that,
Having heard the submissions of the counsel for the parties and perusing the record, I find that at the initial stage when this case was filed, the Court vide order dated 05.09.2022 had granted three weeks’ time to the complainant/opposite party no 2 to file counter affidavit, but no counter affidavit has been filed by the complainant. I also find that the complainant-Satyam Singh and witness namely Kaushlendra Pratap Singh are son and father and they are also accused in the F.I.R dated 30.06.2017, lodged by applicant no1. The witness Suraj Kumar Rai is also a relative of the complainant. The application of the complainant with the same allegation of second marriage against the applicant no 1 was also investigated by the police officials and the allegation was found false.
So far as the second marriage of applicant no 1 is concerned, it is well settled that the word ‘solemnize’ means, in connection with a marriage, ‘to celebrate the marriage with proper ceremonies and in due form’. Unless the marriage is celebrated or performed with proper ceremonies and due form, it cannot be said to be ‘solemnized’. If the marriage is not a valid marriage, according to the law applicable to the parties, it is not a marriage in the eyes of law.
It is also well settled that to constitute an offence under Section 494 I.P.C, it is necessary that the second marriage should have been celebrated with proper ceremonies and in due form. The ‘Saptapadi’ ceremony under the Hindu Law is one of the essential ingredients to constitute a valid marriage but the said evidence is lacking in the case.
Even there is no averment with regard to ‘Saptapadi’ in the complaint as well as in the statements under Section 200 and 202 Cr.P.C, hence, the Court is of the view that no prima-facie offence is made out against the applicants as the allegation of second marriage is a bald allegation without corroborative materials.
So far as the alleged photograph is concerned, the Court is of the view that photograph is not sufficient to prove the factum of marriage, especially when the same are not proved on record in accordance with the Evidence Act. Where marriage is disputed, it is not enough to find that marriage took place leaving it to be presumed that rites and ceremonies necessary to constitute a legal marriage were performed. In absence of cogent evidence in this regard, it is difficult to hold that the Saptapadi ceremony of the marriage as contended by the complainant was performed so as to constitute a valid marriage between the parties concerned. As such on taking into consideration the contents of the complaint on its face value, the basic ingredients to constitute an offence under Section 494 read with section 109 of I.P.C are lacking, hence, no offence is made out against the applicants.
“On the aforesaid discussion, the Court is of the view that the criminal proceedings against the applicants initiated by opposite party No 2 is nothing but a malicious prosecution with an ulterior motive, which is clear abuse of process of the Court. Impugned summoning order dated 21.04.2022 of the case is not sustainable. The Court under the facts and circumstances of the case, feels that it is the solemn duty of the Court to protect apparently an innocent person, not to be subjected to such frivolous prosecution on the basis of wholly untenable allegations and complaint, if criminal proceeding is allowed to go on, the same will tantamount to causing grave miscarriage of justice, therefore in order to secure the ends of justice, the impugned criminal proceeding against the applicants is liable to be quashed”, the Court further observed while allowing the application.
“As a fallout and consequence of aforesaid discussion, impugned summoning order dated 21.04.2022 and further proceedings of Complaint Case (Satyam Singh vs Smriti Singh) against the applicants are hereby quashed”, the order reads.
The post Constituting offence under section 494 I.P.C needs proper proof of ceremonies of second marriage: Allahabad High Court appeared first on India Legal.