Partly allowed

Sri Vishwanath S Hegde v. Shri Moulali S/O Bashasab Shiggavii

Karnataka HC1 Aug 2024CRL.P/100361/2023

Case brief

AI extract

What is this about?

High Court allowed petitions quashing JFC registration of case against accused 3-8 for conspiring marriage of accused 1 and 2 during subsistence of first marriage. Held no offence under 493/496 as no cohabitation/fraud alleged; proceedings against 1 and 2 under 494 continued.

What did the court decide?

Order quashed against accused Nos. 3 to 8. Registration of case against accused Nos. 1 and 2 for offences u/s 493 and 496 quashed. Trial to continue against accused Nos. 1 and 2 for offence under Sect

Sri Vishwanath S Hegde Vs Shri Moulali S/O… — Matrimonial and Divorce | Karnataka HC (2024)

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1 - NC: 2024:KHC-D:10891 CRL.P No. 100361 of 2023 C/W WP No. 100977 of 2023

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IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH

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DATED THIS THE 1^ST DAY OF AUGUST 2024

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BEFORE

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THE HON'BLE MR. JUSTICE SHIVASHANKAR AMARANNAVAR

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CRIMINAL PETITION NO. 100361 OF 2023

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C/W

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WRIT PETITION NO. 100977 OF 2023

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IN CRL. P No.100361/2023 BETWEEN:

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SRI. VISHWANATH S. HEGADE, AGE: 54 YEARS, OCC: ADVOCATE, R/O: SUBRAHAMANYA BUILDING, OPP: GOVIDRA HALL, VIKAS ASHRAM, CIRCLE SIRSI, TQ: SIRSI, DIST: KARWAR - 581401.

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…PETITIONER

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(BY SRI. VENKATESH M. KHARVI AND SMT. NIRMALA V. DODAMANI, ADVOCATES)

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AND:

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YASHAVANT NARAYANKAR

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Location: HIGH COURT OF KARNATAKA

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SHRI. MOULALI S/O. BASHASAB SHIGGAVI, AGE: 22 YEARS, OCC: COOLIE, R/O: KARADAGI, TQ: SAVANUR, DIST: HAVERI – 581126.

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…RESPONDENT (BY SRI. S.A. KOLAKAR, ADVOCATE)

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THIS CRIMINAL PETITION IS FILED U/SEC. 482 OF CR.P.C. SEEKING TO QUASHED THE ORDER PASSED BY THE JUDICIAL MAGISTRATE FIRST CLASS-II COURT, BELAGAVI IN PRIVATE COMPLAINT NO.105/2021 DATED 03.03.2022 IN C.C.NO.1284/2022 FOR THE OFFENCE PUNISHABLE U/SEC. 493, 494, 496 R/W 149 OF IPC AGAINST THE ACCUSED NO.8 BY ALLOWING THE PETITION.

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2 - NC: 2024:KHC-D:10891 CRL.P No. 100361 of 2023 C/W WP No. 100977 of 2023

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IN WP No.100977/2023 BETWEEN:

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SMT. SEEMBRAN D/O. RABBANI BHATTI, AGE: 23 YEARS, OCC: TAILORING AND TUITION, R/O: NEAR WATER TANK, GANDHI NAGAR, TQ: MUNDAGOD, DIST: KARWAR - 581349.

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SRI. MOULALI S/O. KHADARSAB HARAKONI, AGE: 27 YEARS, OCC: BUSINESS, R/O: KARADAGI, TQ: SAVANUR, DIST: HAVERI - 581126.

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SRI. RABBANI S/O. GHOUSESAB BHATTI, AGE: 57 YEARS, OCC: MECHANIC, R/O: NEAR WATER TANK, GANDHI NAGAR, TQ: MUNDAGOD, DIST: KARWAR - 581349.

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SMT. RAZIYA W/O. RABBANI BHATTI, AGE: 51 YEARS, OCC: LABOUR WORK, R/O: NEAR WATER TANK, GANDHI NAGAR, TQ: MUNDAGOD, DIST: KARWAR – 581349.

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SMT. BASIRA D/O. KHADARSAB SHIGGAVI, AGE: 46 YEARS, OCC: HOUSEHOLD, R/O: KARADAGI, TQ: SAVANUR, DIST: HAVERI – 581126.

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SRI. REHAN S/O. RABBANI BHATTI, AGE: 20 YEARS, OCC: LABOUR, R/O: NEAR WATER TANK, GANDHI NAGAR, TQ: MUNDAGOD, DIST: KARWAR - 581349.

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SMT. BASIRA D/O. RABBANI BHATTI, AGE: 21 YEARS, OCC: LABOUR WORK, R/O: NEAR WATER TANK, GANDHI NAGAR, DIST: KARWAR – 581349.

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…PETITIONERS

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(BY SRI. VENKATESH M. KHARVI AND SMT. NIRMALA V. DODAMANI ADVOCATES)

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3 - NC: 2024:KHC-D:10891 CRL.P No. 100361 of 2023 C/W WP No. 100977 of 2023

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AND:

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SHRI. MOULALI S/O. BASHASAB SHIGGAVI, AGE: 22 YEARS, OCC: COOLIE, R/O: KARADAGI, TQ: SAVANUR, DIST: HAVERI – 581126.

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…RESPONDENT

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(BY SRI. SAYADAHMED A. KOLAKAR, ADVOCATE)

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THIS WP IS FILED UNDER ARTICLE 226 & 227 OF CONSTITUTION OF INDIA R/W SEC. 482 OF CR.P.C PRAYING TO ISSUE THE WRIT OF CERTIORARI OR ANY ORDER OR DIRECTIONS TO QUASH THE ORDER PASSED BY THE JMFC - IV COURT, BELAGAVI IN PC NO.105/2021 IN CC NO.1284/2022 DATED 03/03/2022 FOR THE OFFENCE SECs. 493, 494 AND 496 R/W 149 OF IPC VIDE ANNEXURE-W.

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THESE PETITIONS COMING ON HEARING ORDERS THIS DAY, THE COURT MADE THE FOLLOWING:

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CORAM: THE HON'BLE MR. JUSTICE SHIVASHANKAR AMARANNAVAR

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ORAL ORDER

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Crl.P.No.100361/2023 is filed by accused No.8

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praying to quash the order dated 03.03.2022 passed in private complaint No.105/2021 by JMFC-IV Court, Belagavi registering of the criminal case for offences punishable under Sections 493, 494 and 496 read with Section 149 of

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4 - NC: 2024:KHC-D:10891 CRL.P No. 100361 of 2023 C/W WP No. 100977 of 2023

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Indian Penal Code (hereinafter referred as to “IPC” for brevity) and consequent registration of C.C.No.1284/2022.

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W.P.No.100977/2023 is filed by accused Nos.1

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to 7 praying to issue writ of certiorari to quash the order dated 03.03.2022 passed in private complaint No.105/2021 by the JMFC-IV Court, Belagavi registering criminal case for offences punishable under Sections 493, 494 and 496 read with Section 149 of IPC and consequent to registration of C.C.No.1284/2022.

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Since both petitions arise out of the same order hence, they are taken together for disposal.

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The respondent –complainant is husband of accused No.1 –Smt. Simran. Marriage of the respondent – complainant with accused No.1 has taken place on 29.05.2020. It is alleged in the complainant that accused No.2 married accused No.1 on 02.05.2021 during subsistence of marriage of complainant with accused No.1. It is also alleged that accused Nos. 3 to 8 in collusion with each other solemnized the marriage of accused No.1 with

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accused No.2 on 02.05.2021 at about 11.30 a.m. at Yamanapura Village as per muslim rituals.

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It is stated in the complaint that the marriage of respondent -complainant with accused No.1 was subsisted and there was no divorce and therefore, the marriage of accused No.1 with accused No.2 attracts Sections 493, 494 and 496 read with Section 149 of IPC. The respondent/ Complainant in that regard has filed a private complaint No.105/2021 on the file of IV JMFC Belagavi. The learned Magistrate has recorded a sworn statement of complainant as CW.1 and two witnesses as CW.2 and CW.3 and got marked 6 documents as Ex.C.1 to Ex.C.6. Learned Magistrate by his order dated 03.03.2022 has ordered to register a criminal case against accused No.2 for offences punishable under Sections 493, 494 and 496 read with Section 149 of IPC and consequently, C.C No.1284/2022 came to be registered against accused Nos.1 to 8 for the said offences. The said order dated 03.03.2022 and consequent registration of the criminal case has been sought to be quashed in these petitions.

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6 - NC: 2024:KHC-D:10891 CRL.P No. 100361 of 2023 C/W WP No. 100977 of 2023

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Heard the learned counsel for the petitioners

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and learned counsel for the respondent.

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Learned counsel for petitioners would contend that no marriage has taken place on 02.05.2021 between accused Nos.1 and 2 as alleged at Yamanapur village and the persons appearing in the photographs - Ex.C.1 to Ex.C.4 are not the accused Nos.1 and 2. The accused No.1 has filed a suit in O.S No.67/2021 against her husband i.e., complainant/ respondent on 14.09.2021 seeking dissolution of the marriage and prior to that she had filed a petition under Protection of Women from Domestic Violence Act against the respondent/ complainant and others in Crl. Misc. No.16/2021 and it came to be filed on 09.04.2021 and therefore to take revenge against accused No.1, the complainant has filed a false complaint against the accused persons. The accused No.1 has also filed the petition seeking maintenance under Section 125 of Cr.P.C in Crl. Misc. No.47/2021 on the file of JMFC, Mudhol and it is also filed on 14.09.2021. Therefore, the respondent/ complainant as a counter blast has filed a private

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7 - NC: 2024:KHC-D:10891 CRL.P No. 100361 of 2023 C/W WP No. 100977 of 2023

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complaint against the accused persons making false allegations. The accused No.2 married one Heena Kousar on 25.04.2019 and he is having a child out of that marriage. He contended that the Jamat has issued a certificate that accused No.1 had married Heena Kousar. As accused No.2 married to Heena Kousar there is no question of marrying accused No.1 who is wife of respondent/ complainant. The said suit OS No.67/2021 has been filed by accused No.8 who is a petitioner in Crl. P. No.100361/2023 as a Advocate for Seembran against the respondent/ complainant and therefore, he has been arrayed as accused No.8 in the complaint. The photographs produced and marked as Ex.C.1 to Ex.C.5 are not that of accused Nos.1 and 2 and the accused Nos.3 to 8 are not seen in those photographs. He placed reliance on the decision of the Hon’ble Apex Court in the case of Ramesh Chandra Gupta Vs. State of Uttar Pradesh and Others reported in 2022 Live Law (SC) 993 in which the Apex Court has considered the case of Bhajan Lal and Neeharika Infrastructure Private Limited, the

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grounds on which the criminal proceedings can be quashed. He also reliance on the decision of the Coordinate Bench of this Court rendered in Crl.P. No.101812/2023 contending that the offences under Sections 494, 495 and 496 of IPC are not attracted against the members of the extended family and they cannot be prosecuted for those offences. He also placed reliance on

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the decision of the Co-ordinate Bench of this Court rendered in Crl.P. No.7517/2017 contending that only the person who married during the subsistence and the life time of earlier spouse and the earlier marriage could be prosecuted for offence under Section 494 of IPC. He contends that accused No.2 is the cousin brother of accused No.1 and therefore, there is a grudge against the accused No.2 by the complainant. On these grounds he prays to quash the proceedings against the petitioners.

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Learned counsel for the respondent would contend that the accused No.1 and respondent/ complainant resided in a rented house of Karadagi village. The case filed by the accused No.1 against the

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complainant will not come in the way since accused No.2 by marrying the accused No.1 has committed the offences alleged against him. The accused No.1 has filed a private complaint No.105/2021 against the respondent/ complainant and it came to be referred to Police for investigation and the Police filed B-report in the said case and it indicates that a false complaint has been filed by the complainant against the respondent. The respondent appeared in all cases filed by accused No.1 and he is contesting those cases on merits. He supports the reasoning assigned by the learned Magistrate in ordering registration of the criminal case and issue of process against them. He contends that the evidence of CW.1 to CW.3 and documents Ex.C.1 to Ex.C.7 are sufficient to establish the offences alleged against the accused persons. On these grounds he prayed for dismissal of both the petitions.

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Having heard the learned counsels, the Court has perused the material placed on record.

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10 - NC: 2024:KHC-D:10891 CRL.P No. 100361 of 2023 C/W WP No. 100977 of 2023

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It is not in dispute that accused No.1 is a wife

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of respondent/ complainant and their marriage has been solemnized on 29.05.2020 and it is still subsisting. It is also not in dispute that the accused No.1 had filed OS No.67/2021 on 14.09.2021 against the respondent/ complainant seeking dissolution of marriage. It is also not in dispute that accused No.1 has filed Crl.Misc. No.16/2021 on 09.04.2021 against the respondent and others and filed Crl.Misc. No.47/2021 under Section 125 of Cr.P.C against the respondent/ complainant seeking maintenance.

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On going through the averments of the complaint and sworn statement of complainant/ CW.1 indicate that accused No.2/ Sri.Moulali has married the accused No.1 Seembran on 02.05.2021 at Yamanapur village of Belagavi. The said version of CW.1 has a support of the sworn statement of 2 witnesses namely Hazaresab Allabhaksha Kolkar (CW.2) and Hazaresab Mahadahaniph Baradukhane (CW.3). CW.2 and CW.3 also stated that they witnessed the marriage of accused No.2 with accused

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No.1 on 02.05.2021 at 11:30 am at Yamanapur village. As on the date of the said marriage i.e., on 02.05.2021, the marriage of the complainant/ respondent with accused No.1 Seembran was subsisting. The said act of marriage of accused No.2 with accused No.1 during the subsistence of marriage of respondent/ complainant with accused No.1/ Seembran attracts offence under Section 494 of IPC as against accused Nos.1 and 2.

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Case which came to be registered against the accused Nos.1 to 8 is for offences under Section 493, 494 and 496 r/w Sections 149 of IPC. Therefore, it is necessary to extract the said provisions namely 493, 494 and 496 of IPC.

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“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.

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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

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12 -

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for a term which may extend to seven years, and shall also be liable to fine.

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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,

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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 of facts so far as the same are within his or her knowledge.

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Marriage ceremony fraudulently gone through without lawful marriage.-Whoever, dishonestly or with a fraudulent intention, goes through the ceremony of being married, knowing that he is not thereby lawfully married, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.

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On careful reading of Section 494, it applies to the parties to the second marriage and not the persons who were present at the ceremony of the second marriage. Even though, the accused Nos.3 to 8 are stated to be present at the ceremony of marriage on 02.05.2021 between accused Nos.1 and 2, the said aspect will not attract the offence under Section 494 of IPC.

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14. Either in the averments of the complaint or in

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the sworn statement of CW.1 to CW.3, there is no any averments of cohabit or sexual intercourse between accused Nos.1 and 2. Therefore, the offence under Section 493 of IPC is not attracted against the accused Nos.1 and 2. The said offence under Section 493 is also not attracted against the other accused namely accused Nos.3 to 8. As allegation against them is that they were present at the time of ceremony of marriage between accused Nos.1 and 2. An offence under Section 494 of IPC is different from the offence under Section 496 of IPC. If the accused intends that there should be a valid marriage and performed the necessary ceremonies during the life time of other spouse, then it may be a case under Section 494 of IPC, but if the accused only intends that there should only a marriage and dishonestly and fraudulently goes through the marriage ceremony knowing fully well that he is not legally married thereby it is an offence under Section 496 of IPC. There is no allegation either in the complaint or in the sworn statement of CW.1 that accused

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No.2 has dishonestly and fraudulently has gone through

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the marriage ceremony knowing fully well that he is not legally married. To attract offence under Section 496 of IPC, the essential ingredients are i) dishonestly or with fraudulent intention going through the ceremony of marriage ii) Knowledge on the part of the person going through the ceremony that he is not lawfully married. On considering the said ingredients the said offence is also not attracted against the persons who are present at the ceremony of the second marriage.

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In view of the above, no offence is made out against the accused Nos.1 to 8 for offences under Section 493 and 496 of IPC. There is also no case made out to attract offences under Section 494 of IPC against accused Nos.3 to 8.

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In view of the above, the following:

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ORDER

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i) The Crl.P.No.100361/2023 is allowed. ii) The W.P.No.100977/2023 is allowed in part.

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iii) The order dated 03.03.2022 passed in PC No.105/2021 by the JMFC II Court, Belagavi and consequent registration of CC No.1284/2022 against accused Nos.3 to 8 is quashed. The registration of a case against accused Nos.1 and 2 for offence under Section 493 and 496 also stands quashed.

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iv) The trial Court to continue the proceedings against accused Nos.1 and 2 in CC No.1284/2022 for offence under Section 494 of IPC.

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Sd/(SHIVASHANKAR AMARANNAVAR) JUDGE

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DSP,PJ Ct:anb List No.: 1 Sl No.: 51

Sri Vishwanath S Hegde v. Shri Moulali S/O Bashasab Shiggavii

Case brief

What is this about?

What did the court decide?

Sri Vishwanath S Hegde v. Shri Moulali S/O Bashasab Shiggavii

Case brief

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What did the court decide?

What the court decided

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