@JUDGMENTTAG-ORDER
R. Karuppiah, J@mdashBoth the Criminal Original Petitions have been filed by the petitioners to quash the proceedings in C.C. No. 127 of 2008 pending on the file of the Judicial Magistrate Court, Avinashi. The brief facts in a nutshell are that the marriage between the 1st petitioner in Crl. O.P. No. 3018 of 2010 namely Nandakumar and the respondent namely Lalitha solemnized on 14.11.1996 and a female child namely Deepikasri was born on 20.8.1997 out of the above said wedlock. The respondent/wife left the matrimonial home on 29.6.2000 due to family dispute. The Husband namely Nandakumar filed a petition for divorce in HMOP No. 92 of 2002 on the file of Subordinate Court, Tiruppur on 1.8.2002. Subsequently, the above said case was transferred to the I Additional District Court, Coimbatore and the case was taken on file as HMOP No. 4 of 2008. During the pendency of the above said proceedings, the respondent/Wife also filed a petition in HMOP No. 59 of 2004 for conjugal rights on 12.4.2004 before the subordinate Court, Tiruppur, which was later transferred to I Additional Court, Coimbatore and taken on file as HMOP No. 3 of 2008. Both sides admitted that divorce petition filed by the husband (i.e.) HMOP No. 4 of 2008 was allowed and divorce was granted as prayed for by the first petitioner/husband on 29.11.2008 and the petition filed by the respondent/wife for conjugal rights in HMOP No. 3 of 2008, on the file of I Additional District Court, Coimbatore was dismissed as not pressed by her on 03.03.2008. All the above said facts are not in dispute.
2. On perusal of the records it is revealed that after disposal of HMOP No. 3 of 2008 filed by the respondent/wife for conjugal rights on 3.3.2008 and during the pendency of divorce petition filed by the first petitioner/husband in HMOP No. 4 of 2008, respondent/wife lodged a private complaint on 7.5.2008 under Section 200 Cr.P.C. before Judicial Magistrate, Avinashi wherein, it is stated that the first petitioner in Crl. O.P. No. 3018 of 2010/husband (Nandakumar) married second petitioner herein (Renuka) as second wife on 12.3.2008 in front of Vinayakar idol situated in Senniyandavar Temple with the help of other petitioners and therefore, prayed for to punish the petitioners under Sections 494 and 120 (B) IPC.
3. The above said private complaint was taken on file as C.C. No. 127 of 2008 on the file of Judicial Magistrate Court, Avinashi and later it was transferred to Judicial Magistrate No. II Court, Coimbatore and numbered as C.C. No. 271 of 2014 and it is pending. These two Crl. OP.s. have been filed by the petitioners to quash the above said proceedings in C.C. No. 271 of 2014 pending before the Judicial Magistrate No. II Court, Coimbatore.
4. The learned counsel appearing for the petitioners submitted that the order of Judicial Magistrate in taking cognizance of alleged offences committed by the petitioners under Section 494 IPC read with 109 IPC is factually and also legally unsustainable since no such second marriage was solemnized as alleged by the respondent/wife. The learned counsel further pointed out that the respondent-wife has not produced any materials to prove the factum of the alleged second marriage held on 12.3.2008 and only on the basis of hearsay information from one Saravanan and Sasikumar, the respondent-wife filed the above said private complaint with false allegation as if the first petitioner married the second petitioner as second wife. The learned counsel appearing for the petitioners further pointed out that normally the Hindu marriage will not be performed at 5.45 a.m. in a temple and also pointed out that either in the complaint or in the sworn statements recorded from the witnesses, not stated any reason why the marriage ceremonies were not performed in front of the main deity called Senniyandavar and only alleged to have performed in front of Vinayakar idol in the above said Senniyandavar Temple. According to the petitioners, normally the marriage ceremonies will not be held in front of Vinayakar idol and that itself reveal that the alleged second marriage performed in front of Vinayakar idol is absolutely false.
5. The learned counsel appearing for the petitioners submitted that the date of alleged second marriage on 12.3.2008, but the private complaint has been filed by the respondent wife belatedly on 7.5.2008 and absolutely no reason has been stated in the above said private complaint or at the time of statements recorded by the Judicial Magistrate. According to the petitioners, the above said fact itself revealed that the private complaint has been filed with ulterior motive only to harass the petitioners. The learned counsel further pointed out that the averments made in the private complaint filed by the respondent/wife completely contradictory with the sworn statements given by the witnesses before the Judicial Magistrate and that it self proved that the private complaint filed by the respondent/wife is absolutely false. Further, the learned counsel pointed out that during the course of divorce and other proceedings pending before I Additional District Judge, Coimbatore, the respondent/wife clearly admitted that she had withdrawn the private complaint subject matter of this petition and the above said admission also incorporated in the common judgment of the First Additional District Judge, Coimbatore in HMOP No. 4 of 2008 and O.S. No. 440 of 2006 and the above said fact also proved that the allegation of second marriage is false. According to the petitioners, the second petitioner, namely Renuka, and 2nd and 8th petitioner who are alleged parents of the second petitioner are fictitious persons and it is proved from the fact that in spite of summons have been issued by the Magistrate Court for several time but unable to serve the summons and they are returned as no such addressee and therefore, it is clear that the respondent/wife filed the above said private complainant with false allegations with ulterior motive to hearsay the petitioners. Therefore, the learned counsel appearing for the petitioners prayed for to quash the above said private complaint.
6. Per contra, the learned counsel appearing for the respondent/wife submitted that whether the factum of second marriage is proved or not can be decided only based on the evidence adduced before the Magistrate Court and therefore, the above said private complaint cannot be quashed in the initial stage, as prayed for by the petitioners. The learned counsel appearing for the respondent/wife admitted that the respondent/wife filed the private complaint only on hearsay information from Saravanan and Sasikuamr. But the contention of the respondent is that both of them arrayed as witnesses in the complaint and the Magistrate also recorded their sworn statements and therefore, the Criminal Original Petition to quash the private complaint is not at all maintainable.
7. Both sides admitted that the marriage between the first petitioner and the respondent solemnized on 14.11.96 and due to family dispute they are living separately from 29.06.2007 onwards it is also not in dispute that the first petitioner/husband filed a petition on 01.08.2002 seeking divorce and in the above said petition, divorce was granted on 29.11.2008. It is also admitted that the petition for conjugal rights filed by the respondent/wife on 12.04.2004 also dismissed on 03.03.2008 as not pressed even prior to filing of the private complaint dated 07.05.2008. Further after filing the private complaint by respondent/wife, the trial Court has granted divorce as prayed for by the first petitioner/husband on 29.11.2008.
8. Admittedly, the respondent/wife filed the private complaint before the Magistrate court along with only with three documents ie., copies of proceedings in two H.M.O.P. Nos. 92/2002 and 59 of 2004 and a birth certificate and also cited only three witnesses, namely, the respondent/complainant as first witness and Saravanan and Sasikumar as second and third witnesses to prove the averments made in the private complaint. Therefore, the respondent herein has not produced any documentary evidence so as to prove the averments made in the private complaint. Therefore, the respondent herein has not produced any documentary evidence so as to prove the alleged second marriage dated 12.03.2008.
9. On perusal of the private complaint and also the sworn statement recorded from the complainant/wife by the Magistrate reveal that the respondent-wife has not seen the ceremonies of the second marriage and only on the basis of hearsay information from other two witnesses, she lodged the above said private complaint. In the private complaint or at the time of sworn statement, the respondent-wife has not started that both the first and second petitioner are living together as husband and wife from the date of alleged second marriage held on 12.3.2008 Therefore as rightly pointed out by the learned counsel appearing for the petitioners, on the side of the respondent/wife has not produced any documents to prove the alleged second marriage held on 12.08.2008 and after the marriage, they are living together as husband and wife.
10. Further in the private complaint filed by the respondent/wife, wherein averred about the ceremonies of second marriage held on 12.03.2008 as follows:-
11. But on perusal of the sworn statements of the respondent/wife and two other witnesses recorded by the Magistrate revealed that they have not deposed about the marriage ceremonies as averred in the private complaint. Both PWs 1 and 2 namely Saravanan and Sasikumar not at all mentioned the name of the alleged second wife i.e. Renuka, but, they have mentioned only the name of first respondent and his uncle, namely, Soundararajan and not stated the name of other petitioners. The respondent/wife also not deposed the allegations at the time of recording sworn statement as averred in the private complaint. Further, the respondent wife has not stated in the private complaint as one Jayapradha enquired about the second marriage from the first petitioner. But at the time of sworn statement recorded by the Magistrate the respondent-wife has deposed as if the above said Jayapradha enquired from the first petitioner about the second marriage. The above said Jayapradha was also not included in the list of witnesses in the private complaint and also not stated any reason for not include the above witness. Therefore as rightly pointed out by the learned counsel appearing for the petitioners, there are material considerations in the averments made in the complaint and sworn statements recorded by the Magistrate. From the above said contradictory versions clearly show that the essential ceremonies of the second marriage has not been pleaded and also not deposed before the court at the time of giving sworn statements and therefore absolutely no proof for the alleged second marriage.
12. The learned counsel appearing for the petitioners in support of his contention, he relied on the following decisions of the Hon''ble Apex Court and this Court:
(i) In the first decision
"23. In Gopal Lal v. state of Rajasthan this Court ruled that in order to attract the provisions of Section 494 IPC both the marriages of the accused must be valid in the sense that the necessary ceremonies required by the personal law governing the parties must have been duly performed.
(ii) The second decision
"It was thus pointed out by this Court that Section 17 of the Hindu Marriage Act requires that the marriage must be properly solemnized in the sense that the necessary ceremonies required by law or by custom must be duly performed. Once these ceremonies are proved to have been performed the marriage become properly solemnized and if contracted while the first marriage is still subsisting the provisions of Section 494 will apply automatically. In a decision of this court in Kanwal Ram & Ors. Vs. The Himachal Pradesh Administration the earlier case was noticed by this court and relied upon. The matter has also been fully discussed in Priya Bala Ghosh v. Suresh Chandra Ghosh. In view of the authorities of this court, therefore, the following position emerges: where a spouse following position emerges; where a spouse contracts a second marriage while the first marriage is still subsisting the spouse would be guilty of bigamy under Section 494 if it is proved that the second marriage was a valid one in the sense that the necessary ceremonies required by law or by custom have been actually performed."
(iii) The third decision Smt. Priya Bala Ghosh Vs. Suresh Chandra Ghosh reported in 1971 (1) SCC wherein the relevant portion in paragraph 18 reads as under:-
"18. Is Kanwal Ram and others v. The Himachal Pradesh Admin. This court again reiterated the principles laid down is the earlier decision referred to above that in a prosecution for bigamy the second marriage has to be proved as a fact and it must also be proved that the necessary ceremonies had been performed. Another proposition laid down by this decision, which answers the second contention of the learned counsel for the appellant, is that admission of marriage by an accused is no evidence of marriage for the purpose of proving, an offence of bigamy or adultery. On the evidence it was held in the said decision that the witnesses have not proved that the essential ceremonies had been performed."
(iv) The fourth decision
"11. As laid down in the aforesaid two decisions referred to by learned counsel for the petitions, neither in the complaint nor in the sworn statement there are allegations constituting the ingredients for the commission of the offence under Section 494 IPC. Neither in the complaint nor in the sworn statement of the respondent the details of the form of alleged second marriage undergone by the first petitioner with the third petitioner, name of the witnesses who are alleged to have witnessed the second marriage and the essential ceremonies which are necessary for performing a valid marriage have been mentioned."
13. From the above said law laid down by the Hon''ble Supreme Court and also from the view of this Court, it is clear that where a spouse contracts the second marriage while the first marriage is still subsisting the spouse would be guilty of bigamy under Section 494 only if it is proved that the second marriage was a valid one in the sense that the necessary ceremonies required by law or by custom have been actually performed.
14. In the instant case even though the complaint filed by the respondent stated as if some ceremonies had been performed in front of Vinayaka idol in the Senniyandavar Temple, but in the sworn statement recorded from all the three witnesses show that they have not deposed the above said essential ceremonies for the valid marriage as stated in the complaint. Further if the marriage ceremonies had been performed in a temple only after observing the formalities and on perusal if necessary certificates. In the instant case, the respondent/wife has not taken any steps to verify whether any such records available with the temple authorities to show that on 12.3.2008 the alleged second marriage has been performed. The respondent/wife has not included anyone of the temple authorities in the list of witness in her private complaint so as to prove the alleged performance of second marriage.
15. In the private complaint filed by the respondent/wife, nowhere it is stated as the marriage between the first petitioner and the second petitioner performed as Suyamariyathai marriage or seerthiruththa marriage so as to apply the special provisions regarding Suyamariyathai and Seerthiruththa marriage as amended by State of Tamilnadu inserted as Section 7-A. In the present case, the only contention of the respondent/wife is that the alleged second marriage between the first and second petitioner performed in the temple as per their Hindu customs. Therefore, in the light of the law laid down by the Hon''ble Supreme Court and this Court, I am of the considered view that absolutely no materials to show that the second marriage has been performed as alleged in the complaint filed by the respondent/wife.
16. As already discussed, the respondent/wife herself clearly admitted the earlier proceedings pending before the Civil Court in H.M.O.P. No. 4 of 2008 and original suit in O.S. No. 440 of 2006 as she had withdrawn the private complaint by her filed against these petitioners. For better clarity, the relevant portion of the Judgment of the First Additional District Court, Coimbatore is extracted as follows:-
17. From the above said observation of the First Additional District Judge revealed that the respondent/wife herself admitted that as she had withdrawn the above said private complaint given against the petitioners. The above said fact also proved that the respondent/wife lodged a false complaint and hence the respondent expressed before the Court as withdrawn the above said complaint as rightly pointed out by the learned counsel appearing for the petitioners.
18. Admittedly in the instant case, the alleged second marriage was performed on 12.3.2008. According to the respondent/wife on the same day, the alleged eye witnesses, viz. Saravanan and Sasikumar informed the above said fact of marriage to the respondent/wife. The respondent/wife fied the private complaint only on 7.5.2008. In the complaint or the sworn statements recorded by the Magistrate, the respondent/wife has not stated any reason for the above said abnormal delay in filing the complaint. Further, the respondent/wife has not given any complaint to the concerned police immediately after she came to know the above said second marriage.
19. The learned counsel appearing for the petitioners, relied on the law laid down by the Hon''ble Supreme Court in the decision in
"A complaint may also be quashed where it is a clear abuse of the process of the Court, as when the criminal proceeding is found to have been initiated with mala fides/malice for wreaking vengeance or to cause harm, or where the allegations are absurd and inherently improbable."
20. In the instant case, as already discussed, the private complaint has been filed by the respondent/wife with false averments without supporting any materials and also filed belatedly during the pendency of other proceedings between the first petitioner and the respondent. From the entire facts narrated in earlier paras show that the respondent has initiated the criminal proceedings with mala fide intention as rightly pointed out by the learned counsel appearing for the petitioners. Therefore, the above said complaint is liable to be quashed.
21. For the foregoing reasons, I am of the view that the private complaint filed by the respondent in C.C. No. 271 of 2014 on the file of the Judicial Magistrate No. II, Coimbatore, is liable to be quashed as prayed for in the petition. In the result, C.C. No. 271 of 2014 pending on the file of the Judicial Magistrate No. II, Coimbatore is quashed as prayed for by the petitioners 1, 3 to 6 & 7 and both the Criminal Original Petitioners in Crl. O.P. Nos. 3018 of 2010 and 5231 of 2012 are allowed accordingly. Consequently, connected Miscellaneous Petitioners are closed.
