Sunday, 19 April 2015

adultery on husband u/s 494 of IPC during life time of first wife.

 A perusal of the above-extracted provision reveals,  that  to  satisfy
the ingredients thereof, the man concerned should  have deceived the  woman,
to believe the existence of matrimonial ties with  her.  And  based  on  the
aforesaid belief, the man should have cohabited with her.  The  question  to
be determined on the basis of the factual  position,  as  has  been  noticed
hereinabove, is whether in the facts and circumstances of this case,  it  is
possible to accept such deceit, at the hands of the respondent, even  if  it
is accepted for the sake of arguments, that cohabitation  continued  between
the parties between 08.01.1994 till 23.06.1994, i.e.,  from  the  date  when
the respondent was granted an ex-parte decree of divorce (by the  Additional
District Judge, Chandigarh), till  the  date  when  the  respondent  married
Sunita Rani. We are of the considered view, that with the setting  aside  of
the ex-parte decree of divorce dated 08.01.1994 (on 19.02.1996),  it  cannot
be accepted, that there  was  any  break  in  the  matrimonial  relationship
between the parties.  Even  the  complaint  filed  by  the  appellant  under
Section  376  of  the  Indian  Penal  Code  was  not  entertained  (and  the
respondent was discharged), because  it  came  to  be  concluded,  that  the
matrimonial ties between the appellant and  the  respondent  were  restored,
with the setting aside  of  the  ex-parte  decree  of  divorce,  as  if  the
matrimonial relationship had never ceased. In sum and  substance  therefore,
consequent upon the passing of  the  order  dated  19.02.1996  (whereby  the
Additional District Judge, Chandigarh, set aside the ex-parte  decree  dated
08.01.1994), the matrimonial ties between the appellant and the  respondent,
will be deemed to have subsisted during the entire  period  under  reference
(08.01.1994 to 23.06.1994).  In fact, the accusation of  the  appellant,  on
the aforesaid premise,  in  the  first  complaint  filed  by  the  appellant
against the respondent (under Section 376 of the Indian Penal Code) was  not
entertained, and the respondent was discharged, just because  of  the  above
inference.  For exactly the same reason, we are satisfied  that  the  charge
against the respondent is not made out, under  Section  493  of  the  Indian
Penal, because the respondent could not have deceived the appellant  of  the
existence of a "lawful marriage", when  a  lawful  marriage  indeed  existed
between the parties, during the period under reference.
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                                                             REPORTABLE



                       IN THE SUPREME COURT OF INDIA

                        CRIMINAL APPELLATE JURISDICTION

                        CRIMINAL APPEAL No.457 OF 2008


RAVINDER KAUR                                      .......APPELLANT




                                   VERSUS



ANIL KUMAR                                           .......RESPONDENT




                               J U D G M E N T

J.S.KHEHAR, J.

                 The appellant (Ravinder  Kaur)  and  the  respondent  (Anil
Kumar) got married on 14.08.1991. Soon thereafter, the respondent  preferred
a  petition  seeking  divorce  from  the  appellant  before  the  Additional
District Judge, Ropar.   Having  received  summons  in  the  above-mentioned
case, the  appellant  entered  appearance  before  the  Additional  District
Judge, Ropar, on 08.10.1992.  On the following  day,  i.e.,  on  09.10.1992,
the respondent withdrew the petition filed by him under Section  13  of  the
Hindu Marriage Act, 1955.
                  The  respondent  filed  a  second  divorce   petition   on
30.04.1993, under Section 13 of the Hindu Marriage Act, 1955,  on  the  same
factual  premise  and  grounds  (as  the  earlier  petition),   before   the
Additional District Judge, Chandigarh.  Proceedings were  conducted  in  the
second divorce petition, in the absence of the appellant,  and  an  ex-parte
decree of divorce was granted to the respondent, on 08.01.1994.  It was  the
case of the appellant before this Court, that the respondent did not  inform
her, that the matrimonial ties between the parties had come to  an  end,  by
the decree of divorce dated 08.01.1994. And under the impression,  that  the
marriage was subsisting, he continued his  conjugal  relationship  with  the
appellant, as her husband, by deception.
                 It was also the case of the appellant, that  on  23.06.1994
the respondent married Sunita Rani.  It was, thereupon, that  the  appellant
became aware (on 23.06.1994 i.e., on  the  occasion  of  his  marriage  with
Sunita Rani) about the fact, that the respondent had  been  granted  an  ex-
parte decree of divorce on 08.01.1994 (by  the  Additional  District  Judge,
Chandigarh).  Within six days, of her coming to know, about  the  above  ex-
parte decree  of  divorce,  the  appellant  preferred  an  application,  for
setting aside the  said  ex-parte  decree,  on  29.06.1994.   The  same  was
allowed by the Additional District Judge,  Chandigarh,  on  19.02.1996.   In
sum and substance, therefore, the matrimonial  ties  between  the  appellant
and the respondent came to be restored, as if the marital  relationship  had
never ceased.
                 Based on the fact, that the respondent  had  continued  the
sexual relationship with the  appellant,  for  the  period  from  08.01.1994
(when the ex-parte decree of divorce was  passed)  till  he  married  Sunita
Rani on 23.06.1994, the appellant preferred a complaint before the  Judicial
Magistrate 1st Class, Kharar, under Section 376 of the  Indian  Penal  Code.
It is not a matter of dispute, that the respondent was discharged  from  the
above proceedings. In fact, no trial came to be conducted in furtherance  of
the above complaint made by the appellant.  The above  order  of  discharge,
was assailed by the appellant, before the High Court of Punjab and  Haryana,
at Chandigarh (hereinafter referred to  as  `the  High  Court').   The  High
Court affirmed the order of discharge,  on  10.07.1997.   Dissatisfied  with
the order of discharge, as also, the order passed by  the  High  Court,  the
appellant approached this Court. This Court declined to interfere  with  the
above orders.
                 On the same factual premise, as has  been  noticed  in  the
foregoing paragraphs (wherein  the  appellant  had  filed  a  complaint  for
initiation of proceedings under Section 376 of the Indian Penal  Code),  the
appellant filed a second complaint, this time  accusing  the  respondent  of
offences under Sections 493, 494, 495, 496, 420, 506 read with Section  120-
B of the Indian Penal Code.  The Judicial Magistrate 1st Class, Kharar,  did
not entertain the aforementioned  complaint  filed  by  the  appellant,  and
dismissed the same vide an order dated 27.11.2002.   Dissatisfied  with  the
aforesaid order, the appellant preferred a revision petition, assailing  the
above order dated 27.11.2002, before the  Sessions  Judge,  Roopnanagr.  The
aforesaid revision petition was dismissed on  04.09.2003.  The  order  dated
04.09.2003 was assailed by the appellant  before  the  High  Court,  through
Criminal Misc.No.50496-M  of  2003.  The  aforesaid  Criminal  Miscellaneous
Petition, was dismissed by the High Court on 10.01.2007.  The  order  passed
by the High Court on 10.01.2007 is a subject  matter  of  challenge  through
the instant appeal.

                 During the course  of  hearing,  learned  counsel  for  the
appellant very fairly asserted, that the claim raised by  the  appellant  in
the complaint, which is a subject matter of the present  consideration,  can
be pressed against the respondent, only with reference  to  the  accusations
levelled by the appellant, under Sections 493 and 494 of  the  Indian  Penal
Code.  It was, therefore, that the instant controversy will be  examined  by
us, limited to the allegations made by the  appellant,  under  Sections  493
and 494 of the Indian Penal Code only.
                 Learned counsel for  the  respondent,  while  opposing  the
prayer made on behalf  of  the  appellant  vehemently  contended,  that  the
present proceedings were not maintainable against  the  respondent,  in  the
light of Section 300 of the Criminal Procedure Code.   In  this  behalf,  it
was the submission of the learned counsel for the respondent,  that  it  was
not open to the appellant to raise a claim against the respondent, so as  to
subject the respondent to a trial  again,  on  the  same  facts  as  in  the
earlier complaint, even for an offence, other than the one,  with  reference
to which the earlier compalint was filed (under Section 376  of  the  Indian
Penal Code). To examine  the  veracity  of  the  contention  raised  by  the
learned counsel for the respondent, Section 300  of  the  Code  of  Criminal
Procedure is being extracted hereunder:
      "300.  Person  once convicted or acquitted not to be  tried  for  same
offence.

(1) A person who has once been tried by a Court  of  competent  jurisdiction
for an offence and convicted or acquitted of such offence shall, while  such
conviction or acquittal remains in force, not be liable to  be  tried  again
for the same offence, nor on the same facts for any other offence for  which
a different charge from the one made against him might have been made  under
sub- section (1) of section 221, or for which he might have  been  convicted
under sub-section (2) thereof.

(2) A person acquitted or convicted of any offence may be afterwards  tried,
with the consent of the State  Government,  for  any  distinct  offence  for
which a separate charge might have been  made  against  him  at  the  former
trial under sub- section (1) of section 220.

(3) A person convicted  of  any  offence  constituted  by  any  act  causing
consequences which, together with such act, constituted a different  offence
from that of which he was convicted, may be afterwards tried for such  last-
mentioned offence, if the consequences had not happened, or were  not  known
to the Court to have happened, at the time when he was convicted.

(4) A person acquitted or convicted of any offence constituted by  any  acts
may, notwithstanding such acquittal or conviction, be  subsequently  charged
with, and tried for, any other offence constituted by the  same  acts  which
he may have committed if the Court by which  he  was  first  tried  was  not
competent to try the offence with which he is subsequently charged.

(5) A person discharged under section 258 shall not be tried again  for  the
same offence  except  with  the  consent  of  the  Court  by  which  he  was
discharged or of any other Court to which  the  first-  mentioned  Court  is
subordinate.

(6) Nothing in this section shall affect the provisions  of  section  26  of
the General Clauses Act, 1897, (10 of 1897 )  or  of  section  188  of  this
Code.
Explanation.- The  dismissal  of  a  complaint,  or  the  discharge  of  the
accused, is not an acquittal for the purposes of this section."

                 Having perused Section 300,  we  are  satisfied,  that  the
submission advanced at the hands of the learned counsel for the  respondent,
namely, that Section 300 of the Criminal Procedure Code, will be an  embargo
to obstruct the right of the appellant to file a  second  complaint  against
the respondent, is not justified.  Our above determination is based  on  the
fact, that the  respondent  had  not  been  tried,  in  furtherance  of  the
previous complaint made by the appellant, under Section 376  of  the  Indian
Penal Code.  The contention of the learned counsel for the  appellant,  that
the respondent had been discharged in furtherance of the complaint  made  by
the appellant, without any trial having  been  conducted  against  him  (the
respondent), was not  disputed.  Based  on  the  above  factual  contention,
learned counsel for the appellant  had  placed  emphatic  reliance,  on  the
explanation  under  Section  300  of  the  Criminal  Procedure   Code.   The
explanation  relied  upon,  clearly  mandates  that  the  dismissal   of   a
complaint, or the discharge of an accused, would  not  be  construed  as  an
acquittal, for the purposes of this Section. In this view of the matter,  we
are in agreement with the contention advanced at the hands  of  the  learned
counsel for the appellant. We are of the considered view,  that  proceedings
in the second complaint would not be  barred,  because  no  trial  had  been
conducted against the respondent, in furtherance  of  the  first  complaint.
Having so concluded, it emerges that it is open to the appellant,  to  press
the accusations levelled by her, through her second complaint,  referred  to
above.
                 It is, therefore, that we shall  now  examine  the  present
controversy, with reference to Sections 493 and  494  of  the  Indian  Penal
Code, which admittedly survive.  The contention of the learned  counsel  for
the respondent, with reference to Section 493 of the Indian Penal Code  was,
that the ingredients of the offence under Section 493  were  not  made  out,
even if the factual position, as has been  asserted  by  the  appellant,  is
accepted.   Section  493  of  the  Indian  Penal  Code  is  being  extracted
hereunder:
"493. Cohabitation caused by a man deceitfully inducing a belief  of  lawful
marriage.-Every man who by deceit causes  any  woman  who  is  not  lawfully
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."

      A perusal of the above-extracted provision reveals,  that  to  satisfy
the ingredients thereof, the man concerned should  have deceived the  woman,
to believe the existence of matrimonial ties with  her.  And  based  on  the
aforesaid belief, the man should have cohabited with her.  The  question  to
be determined on the basis of the factual  position,  as  has  been  noticed
hereinabove, is whether in the facts and circumstances of this case,  it  is
possible to accept such deceit, at the hands of the respondent, even  if  it
is accepted for the sake of arguments, that cohabitation  continued  between
the parties between 08.01.1994 till 23.06.1994, i.e.,  from  the  date  when
the respondent was granted an ex-parte decree of divorce (by the  Additional
District Judge, Chandigarh), till  the  date  when  the  respondent  married
Sunita Rani. We are of the considered view, that with the setting  aside  of
the ex-parte decree of divorce dated 08.01.1994 (on 19.02.1996),  it  cannot
be accepted, that there  was  any  break  in  the  matrimonial  relationship
between the parties.  Even  the  complaint  filed  by  the  appellant  under
Section  376  of  the  Indian  Penal  Code  was  not  entertained  (and  the
respondent was discharged), because  it  came  to  be  concluded,  that  the
matrimonial ties between the appellant and  the  respondent  were  restored,
with the setting aside  of  the  ex-parte  decree  of  divorce,  as  if  the
matrimonial relationship had never ceased. In sum and  substance  therefore,
consequent upon the passing of  the  order  dated  19.02.1996  (whereby  the
Additional District Judge, Chandigarh, set aside the ex-parte  decree  dated
08.01.1994), the matrimonial ties between the appellant and the  respondent,
will be deemed to have subsisted during the entire  period  under  reference
(08.01.1994 to 23.06.1994).  In fact, the accusation of  the  appellant,  on
the aforesaid premise,  in  the  first  complaint  filed  by  the  appellant
against the respondent (under Section 376 of the Indian Penal Code) was  not
entertained, and the respondent was discharged, just because  of  the  above
inference.  For exactly the same reason, we are satisfied  that  the  charge
against the respondent is not made out, under  Section  493  of  the  Indian
Penal, because the respondent could not have deceived the appellant  of  the
existence of a "lawful marriage", when  a  lawful  marriage  indeed  existed
between the parties, during the period under reference.
                 So far as the surviving provision, namely, Section  494  of
the Indian Penal Code is concerned, the same  is  compoundable.  During  the
course of hearing, on 08.04.2015, we enquired from the learned  counsel  for
the appellant, whether the  appellant  was  interested  in  compounding  the
cause, since we were made aware of the fact,  that  the  respondent  in  the
meantime had fathered two children, from Sunita  Rani.   This  proposal  was
made by the Court on an oral assertion made at the  behest  of  the  learned
counsel representing the respondent, that the appellant had also  re-married
in the meantime, and that, she had also begotten one son out of  her  second
marriage.
                 Having  obtained  instructions,  learned  counsel  for  the
appellant very fairly acknowledged, the second marriage  of  the  appellant.
He also acknowledged, the factum of the appellant having  begotten   a  son,
from her second marriage.  In the changed scenario, learned counsel for  the
appellant informed this Court, that the appellant had instructed  him,  that
a request may be made to  the  Court,  that  the  appellant  would  have  no
objection to the compounding of the offence under Section 494 of the  Indian
Penal Code, in terms of Section 320 of the Code of Criminal Procedure,  with
the consent of this Court.  The contention of the learned  counsel  for  the
appellant however was, that  the  appellant  should  be  awarded  reasonable
cost, while compounding the offence under Section 494 of  the  Indian  Penal
Code.
                 Having given our thoughtful consideration to the facts  and
circumstances of this case, specially the factual position  as  has  emerged
after the ex-parte  decree  of  divorce  dated  08.01.1994  (passed  by  the
Additional District Judge, Chandigarh) was set aside on 19.02.1996,  we  are
of the view, that the best  course  for  the  parties  is  to  settle  their
dispute amicably.  Section 320 of the Criminal Procedure Code is  an  avenue
available to the parties, for such  resolution.   In  view  of  the  consent
expressed by the appellant to this Court  through  her  counsel,  we  hereby
direct the compounding of complaint made by the appellant with reference  to
Section 494 of the Indian Penal Code.  We direct the  respondent  to  pay  a
sum of Rs.5 lakhs, as compensation to the appellant.  The  respondent  shall
deposit the aforesaid amount in this Court within  two  months  from  today.
It shall be open to the appellant to move an application to the Registry  of
this Court, to withdraw the aforesaid amount.
                 The appeal is disposed of in the above terms.

                                                ..........................J.
                                                                    (JAGDISH
SINGH KHEHAR)





..........................J.
                                 (S.A.BOBDE)
NEW DELHI;
APRIL 09, 2015.




































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  2. good work supported by relevant legal research

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  3. good work supported by relevant legal research

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