(Prayer: Criminal Original Petition is filed under Section 482 of Cr.P.C. praying to call for the records in M.C.No.60/2015 on the file of the learned Judicial Magistrate, Additional Mahila Court, Trichy and quash the same.)
1. The petitioner has come forward with this petition under Section 482 of Code of Criminal Procedure, seeking a direction to call for the records in M.C.No.60/2015 on the file of the learned Judicial Magistrate, Additional Mahila Court, Trichy and quash the same.
2.The learned counsel appearing for the petitioners submitted that the respondent herein has preferred a private complaint under Sections 200 and 190(a) Cr.P.C to take action against the petitioners for the offences under Sections 109 r/w 494, 467, 468 and 471 IPC stating that the accused/first petitioner got married with the respondent on 27.05.2001 and due to the lawful wedlock, she gave birth to a male child on 22.05.2002, and the second child was born on 08.07.2004, because of the ill-treatment, she was away from the matrimonial home. Now, the first petitioner has married the second petitioner and as soon the betrothal was conducted on 01.11.2014, she gave a complaint before Thirverumbur Police Station. After that, they have registered the marriage on 12.11.2014 as if the marriage between the A2 and A4 was performed and gave a complaint. The trial Court after taking note of the cognizable offence issued notice to the petitioners herein and they entered appearance and the petitioners have now come forward with this petition seeking that the marriage was performed between the fourth petitioner and the second petitioner. A4 is none other than the brother of the first petitioner. So, the ingredients of Section 494 IPC has not been made out. To substantiate his arguments, he relied upon the judgment of the Honourable Patna High Court in Manju Devi -vs- State of Bihar and others reported in 2000 CRL.L.J 3382 and would submit that the complainant-wife is not an eye-witness at the point of alleged second marriage and the evidence of eye-witnesses is not inspiring the confidence of seeing the accused performing second marriage and mere exchange of garlands between the accused and the alleged second wife is not a recognized mode of marriage and is not sufficient to prove the offence under Section 494 IPC and the case is ended an acquittal. He further submits that as per the records A2 and A4 got married and the same was registered with the consent of wife of A1. Hence, the ingredients are not made out. Hence, he prays for quashing the proceedings.
3. Notice to the respondent/complainant is dispensed with.
4. On perusal of the typed set of papers and also the decision relied upon by the petitioners, it is seen that the marriage between the first petitioner and the respondent is not disputed and the paternity of the child was also not disputed. The only dispute is that the first petitioner got married to the second respondent, but, the marriage has been registered in the name of the fourth petitioner and the second petitioner. Whether the marriage was performed between the first petitioner and the second petitioner and whether the second petitioner and the fourth petitioner are the questions of fact to be considered by the court of law, because spouse and the first petitioner and the fourth petitioner are alive.
5. Now, according to him because of the second marriage, the second petitioner also gave birth to a male child. So the decision relied upon by the counsel for the petitioners in Manju Devi -vs- State of Bihar and others is not applicable to the present case.
6. Whereas in that case, the criminal case was registered in Crime No.48 of 1992 for the offences under Section 498-A IPC and Sections 3 and 4 of the Dowry Prohibition Act, and he also got the second marriage. In that she was convicted against which she preferred an appeal.
7. But, here, it is on an earlier state. In the complaint itself, it is specifically mentioned as if the marriage was performed between the second petitioner and the fourth petitioner. Furthermore, the child was born through the said wedlock. It is left open to the trial Court to find out whether the marriage was performed between the first petitioner and the second petitioner at the time of trial after letting in evidence before the trail Court, as it is only the question of fact.
8. Hence, I do not find any reason to quash the proceedings and therefore, this criminal original petition is dismissed.
9. At this juncture, the learned Counsel appearing for the petitioners wants to dispense with the personal appearance of the other petitioners. The learned Judicial Magistrate, Additional Mahila Court, Trichy, is directed to consider the petition if any filed by the petitioners, for dispensing with their personal appearance and pass appropriate orders on the same on merits and in accordance with law. Consequently, the connected Miscellaneous petitions are also dismissed.