Husband contracting second marriage by suppressing first marriage - Second wife would not be legally wedded wife - Sexual intercourse with second wife is not rape - Harassment and cruelty to second wife - Offence under Section 498-A IPC not made out

MADHYA PRADESH HIGH COURT (Gwalior Bench)

Before :- Anil Sharma, J.
9.12.2011.

Mahesh Kumar Dhawan - Petitioner Versus State of M.P. and another - Respondents

For the Petitioner :- V.D. Sharma and Rajesh Shukla, Advocates.
For the Respondent :- Prabal Solanki, P.P.

NUTSHELL Husband contracting second marriage by suppressing first marriage - Second wife would not be legally wedded wife - Sexual intercourse with second wife - It is not rape.

NUTSHELL Husband Contracting second marriage by suppressing the fact of first marriage - Second wife would not be legally wedded wife - Harassment and cruelty to second wife - Offence under Section 498-A IPC not made out.

A. Indian Penal Code, Sections 375 and 376 - Indian Penal Code, Sections 493, 495 and 375 - Husband contracting second marriage by suppressing first marriage - Second wife would not be legally wedded wife - Sexual intercourse with second wife - It is not rape under Section 375 IPC - The offence may fall under Section 493 and 495 IPC.
[Paras 11 and 17]
B. Indian Penal Code, Section 498-A - Indian Penal Code, Section 4 - Criminal Procedure Code, Section 188 - Harassment to wife by husband in UAE - FIR lodged in India - Prior sanction of Central Govt. before enquiry not obtained - In circumstances registration of FIR and investigation illegal.
[Para 16]
C. Indian Penal Code, Section 498-A - Husband Contracting second marriage by suppressing the fact of first marriage - Second wife would not be legally wedded wife - Harassment and cruelty to second wife - Provisions of Section 498-A, would not apply. [Para 17]

Cases Referred :

H.P. v. Lekh Raj, 2000(1) R.C.R.(Criminal) 10 : 2000 SCC (Cri) 147 : AIR 1999 SC 3916.
Mahendra Kumar Jain v. State of U.P., 1988 CriLJ 544.
State of Maharashtra v. Chandraprakash Kewalchand Jain, 1990(1) R.C.R.(Criminal) 411 : (1990)1 SCC 550 : AIR 1990 SC 658.
Thota Venkateswarlu v. State of Andhra Pradesh Through Principal Secretary, 2011(4) R.C.R.(Criminal) 92 : 2011(4) Recent Apex Judgments (R.A.J.) 612 : (2011)3 SCC (Cri) 772.
V. Suvetha v. State By Inspector of Police, (2009)3 SCC (Cri.) 36 : AIR 2009 SC (supp) 1451.

ORDER

Anil Sharma, J. - Petitioner has filed this petition under Section 482 of Code of Criminal Procedure, 1973 for quashing the criminal proceeding pending before learned Judicial Magistrate First Class, Gwalior in Criminal Case No. 14648/08 whereby the cognizance for the offences punishable under Sections 498-A, 504, 493, 495 and 376 of IPC has been taken against the petitioner.
2. Brief facts of the case in narrow compass are that, respondent No. 2 (Smt. Kiran Khare) has made a written complaint alleging therein that her marriage was solemnized with the petitioner on 31-3-2007 and till 13- 4-2007 they were residing at City Center Gwalior and during this period petitioner had made physical relation with the complainant-respondent No. 2. On 13-4-2007 petitioner went to Delhi for going to Dubai. When they were residing at Dubai, some documents were found in the bag of the petitioner thereby complainant came to know that the petitioner is already married person and he had 15 years old son. In the complaint, it is further alleged that the petitioner has committed cheating and suppressed the fact with regard to his earlier marriage. On 25-7-2007, the complainant was sent back to New Delhi and thereafter, she made a call to first wife of petitioner. It has been further alleged that the petitioner has threatened the complainant that if she told anything about it, he will kill her mother, father and brother. Thereafter. the complainant has filed an application before Superintendent of Police and Super intendent of Police, Gwalior ordered to register the case and thereafter, the FIR has been registered against the petitioner at crime No. 63/07 for the offences punishable under Sections 498-A, 504, 493, 495 and 376 of IPC at Gwalior and on filing the challan, criminal case bearing No. 14648/08 is pending in the Court of Judicial Magistrate First Class, Gwalior.
3. The charge-sheet has been filed before learned Judicial Magistrate First Class, showing the petitioner as absconding accused. Aggrieved by the criminal proceedings registered against the petitioner, this petition has been filed by the petitioner by invoking the inherent jurisdiction of this Court under Section 482 of Cr. P. C. for quashing the FIR and Criminal Case No. 14648/08 pending before learned Judicial Magistrate First Class, Gwalior, mainly on the following grounds :

(i) Entire documents submitted by the plaintiff regarding her marriage with the petitioner are false and fabricated, no marriage of complainant-respondent No. 2 with petitioner has ever been solemnized.

(ii) As per Sections 493 and 495 of IPC, cohabitation caused by a man deceitfully inducing in belief a lawful marriage and same offence with concealment of former marriage from person with whom subsequent marriage is contracted but in the case in hand, the prosecution could not show that the petitioner has concealed the fact that he was already married, therefore, in absence of any ingredients for the offence under Sections 493 and 495 of IPC no case is made out against the petitioner.

(iii) It has been further alleged that for the offence punishable under Sections 493 and 495 of IPC the Court can only take cognizance on the basis of complaint filed by the victim herself and not on the basis of challan filed by the police.

(iv) The allegation of harassment of the complainant by the petitioner is at Dubai where the complainant had gone with the petitioner according to the allegation levelled by her but there is no allegation with regard to cruelty and further for an offence under Section 498-A of IPC or for any other offence which is committed outside India by a citizen of India, cannot be tried in India without prior permission of Central Government.

(v) Looking to the allegation made by the complainant she has been married with petitioner, therefore, the offence under Section 376 of IPC is not made out.

4. Copy of challan papers has been filed by the petitioner. Learned counsel for the petitioner has drawn attention towards typed written complaint filed by respondent No. 2 which is dated 15-9-2007 in which it has been alleged that after marriage with the petitioner, the complainant lived with him from 31-3- 2007 to 13-4-2007 in Hotel Sun Beam at City Center Gwalior where the petitioner had made physical relationship with the complainant in the capacity of a husband. In the month of May, 2007 the complainant went to Dubai where she lived in a house with the petitioner at Abudhabi (U. A. E.) at the time she came to know about the fact that the petitioner is already married and he was having 15 years old son and when she told petitioner regarding his earlier marriage, petitioner started beating her and misbehaved with her and thrown out her back on 25-72007. It has been further alleged by the complainant that the petitioner has committed sexual intercourse with her under a deceitful belief.
5. Learned counsel for the petitioner drew attention of this Court towards the fact that the complainant respondent No. 2 came back to India on 25-7-2007 but the alleged typed written complaint has been lodged by her on 25-9-2007 i.e. after two months when she reached in India. He has further drawn attention of this Court towards the fact that the medical examination of the complainant has been done after lodging of report and slide of vagina was prepared on 30- 10-2007 and the Kshetriya Nyayalayik Vigyan Prayogshala, Gwalior has given its report that spermatozoa has been found in the slide prepared on 30-10-2007.
6. Learned counsel for the petitioner has submitted that after more than 3 months' period the slide of vaginal smear has been prepared and there is no allegation that after 25-7-2007, there was any physical relationship of complainant with the petitioner, therefore, in absence of any physical relationship of complainant with the petitioner, the preparation of vaginal smear after 3 months' itself shows that the petitioner has been falsely implicated in the present offence. To strengthen his contention, learned counsel for the petitioner has placed reliance on the decision of Apex Court in the matter of State of H.P. v. Lekh Raj and another, 2000(1) R.C.R.(Criminal) 10 : 2000 SCC (Cri) 147 : (AIR 1999 SC 3916) which is based on earlier judgment passed in the matter of State of Maharashtra v. Chandraprakash Kewalchand Jain, 1990(1) R.C.R.(Criminal) 411 : (1990)1 SCC 550 : (AIR 1990 SC 658) in which it has been laid down that the spermatozoa can be found if the woman is examined within 12 hours after intercourse, thereafter they may be found between 48 and 72 hours but in dead form. If the prosecutrix washes herself by then, the spermatozoa may not be found. The relevant portion of the medical jurisprudence and toxicology by Mody has also been reproduced which is as under :

"The presence of spermatozoa in the vagina after intercourse has been reported by Pollack (1943) from 30 minutes to 17 days and by Morrison (1972) up to 9 days in vagina and 12 days in the cervix. However, in the vagina of a dead woman, they persist for a longer period".

7. Learned counsel for the petitioner has submitted that looking to these medical aspects, the allegation of rape by the complainant before more than 3 months of her medical examination itself is a doubtful allegation.
8. With regard to allegation regarding offence punishable under Sections 493 and 495 of IPC which are part of chapter 20 of IPC, learned counsel for the petitioner has placed reliance on decision of Allahabad High Court in the matter of Mahendra Kumar Jain and others v. State of U. P. and another 1988 Cri. LJ 544 in which it has been held that the provisions of Section 198 of Cr. P.C. are mandatory and the word "complaint" used in Section 198 of Cr. P. C. does not include the police report. It has been held that the word "complaint" is a defined term under Section 2(d) of Cr. P. C. The word "complaint" means allegations made oral or in writing to a Magistrate with a view to take action under this Code, that some person whether known or unknown has committed an offence but does not include the police report. The relevant portion of Section 198 of Cr. P. C. is as under :

"198. Prosecution for offences against marriage :- (1) No Court shall take cognizance of an offence punishable under Chapter XX of the Indian Penal Code (45 of 1860) except upon a complaint made by some person aggrieved by the offence."

9. Considering the above position of law, the cognizance of offence under Sections 493 and 495 of IPC cannot be taken by a Magistrate on the basis of police report, hence the cognizance of offence under Sections 493 and 495 of IPC taken by learned trial Court is without jurisdiction as the cognizance has not been taken on the basis of complaint filed by the complainant looking to provisions of Section 198 of Cr. P. C.
10. The complainant has clear cut made the allegation of fraud played by the petitioner by suppressing the fact of earlier marriage and the alleged physical relationship were under a belief that she is a legally wedded wife of petitioner. Sections 493 and 495 of IPC reads as under :

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.

495. Same offence with concealment of former marriage from person with whom subsequent marriage is contracted :-

Whoever, commits the offence defined in the last preceding section having concealed from the person with whom the subsequent marriage is contracted, the fact of the former marriage, shall be punished with imprisonment of either description for a term which may extend to 10 years and shall also be liable to fine.

11. A bare perusal of provision of Sections 493 and 495 of IPC shows that the bodily relationship or sexual intercourse by a husband with his second wife falls under the category of offence under Sections 493 and 495 of IPC and it cannot be treated as rape as defined in Section 375 of IPC. It is an independent offence, the cognizance of which can be taken by the Court on the basis of complaint filed by the complainant herself, therefore, the offence punishable under Section 376 of IPC is also not made out as the alleged act of sexual intercourse by the petitioner with the complainant may fall within the category of Sections 493 and 495 of IPC but not in the category of rape as defined in Section 375 of IPC and made punishable under Section 376 of IPC, therefore, the cognizance of Section 376 of IPC is also against the settled principles of law.
12. Learned counsel for the petitioner has submitted that for the allegation of harassment and misbehaviour by the petitioner with the complainant at Abudhabi (U.A.E.) where the complainant lived with the petitioner as wife and the alleged harassment and misbehaviour started when she came to know about earlier marriage of the petitioner since according to the allegation made in the complaint. the complainant stated herself as second wife of petitioner. Learned counsel for the petitioner has further drawn attention of this Court towards ingredients of Section 498-A of IPC as mentioned by the Apex Court in the matter of V. Suvetha v. State By Inspector of Police and another, (2009)3 SCC (Cri.) 36 : (AIR 2009 SC (supp) 1451) in which the ingredients of Section 498-A of IPC has been set out which are as under :

Ingredients of Section 498-A of IPC are :

(a) The woman must be married.

(b) She must be subjected to cruelty or harassment; and

(c) Such cruelty or harassment must have been shown either by husband of the woman or by the relative of her husband.

Further attention of this Court has been drawn towards paragraphs 14. 21 and 24 of the judgment which reads as under :

14. A three-Judge Bench of this Court, however, in Shivcharan Lal Verma v. State of M.P. while interpreting Section 498-A of the Penal Code, in a case where the prosecution alleged that during the life of the first wife Kalindi, the appellant therein married for the second time, Mohini. but after marriage both Kalindi and Shiv Charan tortured Mohini as a result thereof. she ultimately committed suicide by burning herself. opined:

".. .One, whether the prosecution under Section 498-A can at all be attracted since the marriage with Mohini itself was null and void, the same having been performed during the lifetime of Kalindi. Second. whether the conviction under Section 306 could at all be sustained in the absence of any positive material to hold that Mohini committed suicide because of any positive act on the part of either Shiv Charan or Kalindi. There may be considerable force in the argument of Mr. Khanduja, learned counsel for the appellant so far as conviction under Section 498-A is concerned, inasmuch as the alleged marriage with Mohini during the subsistence of valid marriage with Kalindi is null and void. We, therefore, set aside the conviction and sentence under Section 498-A of IPC.

21. A learned Single Judge of the Delhi High Court, however, preferred to follow Shivcharan Lai Verma in preference to Reema Aggarwal to hold that precedentially the former is binding on the High Court, stating:

Therefore. the decision in Shivcharan Lai Verma will clearly take precedence over the decision in Reema Aggarwal. That being the case, the arguments advanced by the learned counsel for the petitioners would have to be accepted that the provisions of Sec. 498-A, IPC would not be attracted inasmuch as the marriage between Mohit Gupta and Shalini was null and void and Mohit Gupta could not be construed as a `husband' for the purpose of Section 498-A. IPC. Clearly, therefore, the charge under Section 498-A, IPC cannot be framed and the Metropolitan Magistrate had correctly, declined to frame any charges under Section 498-A of IPC.

24. Applying the principles laid down in various decisions referred to above, we have no doubt in our mind, that the appellant is not a relative of the husband of the first informant. For the reasons aforementioned. the impugned judgment cannot be sustained. It is set aside accordingly. The appeal is allowed.

13. Learned counsel for the petitioner has submitted that even if the allegation of marriage of complainant with the petitioner is taken true then the allegation of cruelty or harassment is only when the complainant came to know about first marriage of the petitioner, therefore, since the complainant got married with the petitioner during subsistence of first marriage. her marriage with the petitioner is null and void and after getting the knowledge of first marriage if any allegation of misbehaviour or harassment is made by the complainant then it cannot fall under the provisions of Section 498-A of IPC which is applicable to a legally wedded wife as has been held by the Apex Court in the matter of V. Suvetha : (AIR 2009 SC (supp) 1451) (supra), therefore, the cognizance of offence under Section 498-A of IPC is against the law.
14. Learned counsel for the petitioner has further drawn attention of this Court towards the fact that the alleged offence punishable under Sections 498-A and 376 of IPC (i.e. intercourse by the petitioner after complainant came to know about his first marriage in the manner of rape) has been committed at Abudhabi (U.A.E.). He has further drawn attention of this Court towards the provisions of Section 188 of Cr. P. C. which is related to the offences committed outside India. The provisions of Section 188 of Cr. P. C. reads as under :

188. Offence committed outside India :- When an offence is committed outside India-(a) by a citizen of India. whether on the high seas or elsewhere; or

(b) by a person, not being such citizen, on any ship or aircraft registered in India. he may be dealt with in respect of such offence as if it had been committed at any place within India at which he may be found :

Provided that, notwithstanding anything in any of the preceding sections of this Chapter, no such offence shall be inquired into or tried in India except with the previous sanction of the Central Government.

15. Learned counsel for the petitioner has submitted that looking to the proviso of Section 188 of Cr. P. C., the offence as alleged by the complainant against the petitioner being committed outside India cannot be inquired or tried in India except with previous sanction of Central Government, therefore, registration of FIR and investigation itself is illegal in absence of previous sanction from the Central Government. In support of his arguments, he has placed reliance on the decision of Apex Court in the matter of Thota Venkateswarlu v. State of Andhra Pradesh Through Principal Secretary and another, 2011(4) R.C.R.(Criminal) 92 : 2011(4) Recent Apex Judgments (R.A.J.) 612 : (2011) 3 SCC (Cri) 772 in which it has been held that the extension of provisions of Section 4 of IPC to extra-territorial offences committed by Indian citizen outside India would be subjected to limitation imposed under Section 188 proviso of Cr. P. C. With regard to provisions of Section 188 of Cr. P.C. it has been held in paragraph 14 :

"Having regard to the above, while we see no reason to interfere with the High Court's decision to reject the petitioner's prayer for quashing of the proceedings in Complaint Case No. 307 of 2007, we also make it clear that the learned Magistrate may proceed with the trial relating to the offences alleged to have been committed in India. However, in respect of the offences alleged to have been committed outside India, the learned Magistrate shall not proceed with the trial without the sanction of the Central Government as envisaged in the proviso to Section 188, Cr. P. C."

16. Considering the above verdicts of Apex Court, it is clear that the cognizance of offence punishable under Sections 498-A and 376 of IPC which were alleged to have been committed at Abudhabi (U. A. E.) (the allegation of rape is alleged when the petitioner had committed sexual intercourse against the will of complainant after getting her the knowledge about first marriage of petitioner at Abudhabi). All the proceedings, in absence of previous sanction from Central Government are null and void. So far as the offence punishable under Sections 493 and 495 of IPC is concerned, the cognizance of such offence cannot be taken on the basis of police report or challan filed by the prosecution.
17. In view of the foregoing reasons, the offence punishable under Section 498-A of IPC is not made out as the allegation regarding misbehaviour or harassment is only when the complainant had come to know about first marriage of petitioner, therefore, if the marriage of complainant with the petitioner is taken to be solemnized she being the second wife, the allegation of misbehaviour or harassment will not fall under the category of offence punishable under Section 498-A of IPC. So far as the offence punishable under Section 376 of IPC is concerned, the alleged intercourse was a result of marriage of complainant with the petitioner. therefore, firstly the intercourse with the wife does not fall in the category of rape secondly, if the intercourse has been committed under suppression of fact of first marriage, it may fall under the category of offence under Sections 493 and 495 of IPC and does not fall under the category of offence punishable under Section 376 of IPC. Further the cognizance of offence punishable under Sections 493 and 495 of IPC cannot be taken on the basis of police report and even if all the above circumstances are treated as legal, the trial Court is not competent to proceed with trial in absence of any previous sanction of Central Government under the provisions of Section 188 of Cr. P. C. as all the offences have been committed outside India at Abudhabi where the complainant lived with the petitioner. Since the cognizance of offence under Sections 493 and 495 of IPC cannot be taken without complaint of victim, therefore, the prosecution against petitioner for those offences is a nullity. The inference regarding presence of spermatozoa in vaginal smear of complainant after three months of alleged forceful intercourse is not necessary to mention as the alleged intercourse does not fall in the category of rape.
18. Considering overall facts, since no offence under Sections 498-A and 376 of IPC is made out and the police report for offence under Sections 493 and 495 of IPC is incompetent, therefore, the FIR registered against the petitioner is without any authority vested in the police, hence the FIR and further proceedings of taking cognizance by learned trial Court is abuse of process of law and the present case is befitting for interference by this Court under Section 482 of Cr. P. C. to prevent abuse of process of Court. Therefore, the petition filed by the petitioner is allowed, FIR registered at crime No. 63/07 at Police Station Mahila Thana Padav District Gwalior, further proceedings of Criminal Case No. 14648/08 pending before JMFC, Gwalior and the order of taking cognizance in aforesaid offences by the trial Court are hereby quashed.
Copy of this order be sent to the trial Court for information and necessary compliance.

Petition allowed.