When a husband performs the second marriage while his first marriage is alive, a question arises as to whether such act on the part of husband would amount to cruelty within the meaning of Section 498-A of the IPC. As per explanation to Section 498-A of the IPC, cruelty means; any wilful conduct of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (mental or physical) of the woman. It also includes harassment caused with a view to coercing the woman or any person related to her to meet any unlawful demand for any property or valuable security. Here, we are concerned with wilful conduct of such a nature which has caused or which is likely to cause danger to health of non-applicant no. 2. Marrying another woman by the husband during existence of his first marriage is something which is most likely to cause trauma and grave injury to the mental health of the first wife, unless it has been done with the consent of the first wife. If the act of performance of second marriage during subsistence of the first marriage is not interpreted as
amounting to cruelty contemplated under Section 498-A of the IPC, it would frustrate the legislative intent to prevent the torture to a woman by her husband or by relative of her husband and, therefore, that interpretation has to be adopted which sub-serves the object sought to be achieved by the Legislation. Useful reference in this regard may be made to the cases of B.S. Joshi and ors. Vs. State Of Haryana and anr. [2003 Cri L.J. 2028 (SC)] and Reema Aggarwal Vs. Anupam and ors. [(2004) 3 SCC 199]. By these parameters, we find here that the second marriage performed by applicant no. 1 while his first marriage with nonapplicant no. 2 was on, prima facie amounted to cruelty. {Para 5}
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
CRIMINAL APPLICATION (APL) NO. 1287/2022
Atul S/o Raju Dongre Vs SMGate
CORAM : SUNIL B. SHUKRE AND M. W. CHANDWANI, J.J.
ORAL JUDGMENT : (PER:- SUNIL B. SHUKRE, J.)
DATED : 30/11/2022
Heard.
2. Perused the First Information Report (FIR) and the
statements of relevant witnesses with the assistance of the learned
Counsel for the applicants, learned APP and the learned Counsel for
non-applicant no. 2.
3. Although, it is the contention of the learned counsel for the
applicants that the allegations made in the FIR and the material
collected during the course of investigation by Police when taken
together and taken at their face value, no prima facie case for offences
punishable under Sections 376(2)(n), 377, 498-A, 494, 294, 323, 504
and 506 of the Indian Penal Code, 1860 (for short the “IPC”) r/w.
Section 34 of the IPC is made out, we find, agreeing with the
submissions made across the bar on behalf of the State and nonapplicant
no. 2, that there is very strong prima facie case against each of
the applicants for the offences which have been registered against them
vide Crime No. 505/2022 at Police Station, Jaripatka, Nagpur.
4. The FIR as well as the statements of relevant witnesses,
apparently show that each of the applicant nos. 1 to 5 have prima facie
treated non-applicant no. 2, the complainant, consistently with severe
cruelty, so much so that her husband i.e. applicant no. 1 did not spare
her even when she was carrying pregnancy and forcibly committed
repeated acts of sexual intercourse with her with vengeance. The result
was that the complainant i.e. non-applicant no. 2 miscarried the fetus
and lost her child. In fact, the complainant had pleaded with her
husband not to indulge in those acts because of the condition of the
complainant but, her husband was relentless and prima facie behaved in
a savage manner with her. This material further shows that each of these
applicants, on every occasion of friction between husband and wife, had
prima facie taken the side of the husband, and prima facie encouraged
and instigated him in continuing with his atrocious and cruel behaviour
towards his wife. There is prima facie material further showing that all the relatives of the husband, who are applicants here have at one point or the other, indulged in meting out cruel treatment in various ways to non-applicant no. 2, the details of which are to be found not only in the FIR but also in the statements of witnesses.
5. The cruelty prima facie handed out to non-applicant no. 2
did not stop at physically torturing non-applicant no. 2 but, it went
beyond the physical state of pain in the sense that the husband i.e.
applicant no. 1 with impunity performed marriage with another woman and that was done with the active aid and assistance of the rest of the applicants. When a husband performs the second marriage while his first marriage is alive, a question arises as to whether such act on the part of husband would amount to cruelty within the meaning of Section 498-A of the IPC. As per explanation to Section 498-A of the IPC, cruelty means; any wilful conduct of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (mental or physical) of the woman. It also includes harassment caused with a view to coercing the woman or any person related to her to meet any unlawful demand for any property or valuable security. Here, we are concerned with wilful conduct of such a nature which has caused or which is likely to cause danger to health of non-applicant no. 2. Marrying another woman by the husband during existence of his firstmarriage is something which is most likely to cause trauma and grave injury to the mental health of the first wife, unless it has been done with
the consent of the first wife. If the act of performance of second
marriage during subsistence of the first marriage is not interpreted as
amounting to cruelty contemplated under Section 498-A of the IPC, it would frustrate the legislative intent to prevent the torture to a woman by her husband or by relative of her husband and, therefore, that interpretation has to be adopted which sub-serves the object sought to be achieved by the Legislation. Useful reference in this regard may be
made to the cases of B.S. Joshi and ors. Vs. State Of Haryana and anr.
[2003 Cri L.J. 2028 (SC)] and Reema Aggarwal Vs. Anupam and ors.
[(2004) 3 SCC 199]. By these parameters, we find here that the second
marriage performed by applicant no. 1 while his first marriage with nonapplicant
no. 2 was on, prima facie amounted to cruelty. It has been
further prima facie aggravated here when the applicant no. 1 made a
false representation to other woman with whom he performed marriage
during subsistence of the present marriage with non-applicant no. 2 that
his first wife had died and the rest of the applicants i.e. both his parents,
his siblings and also aunt joined in chorus with applicant no. 1. They
falsely told the second woman that the first wife of applicant no. 1 had
died. All these details have been graphically stated by the second woman
in her statement recorded under Section 161 of the Criminal Procedure
Code, 1973 (for short the “Cr.P.C.”). She has also informed the police
that she too had lodged a criminal complaint against applicant no. 1
which was registered by Police Station, Imamwada, Nagpur for certain
cognizable offences. Although, it is not known as to exactly which are
those offences but, the fact remains that even the second wife of
applicant no. 1 has lodged a criminal report against him.
6. The learned Counsel for the applicants submits that nonapplicant
no. 2 in the FIR has only stated about the performance of
second marriage during the subsistence of first marriage of Atul i.e.
applicant no. 1 by way of hearsay evidence, as she has stated that she
learnt about the same from somebody else. This statement, which was in
the nature of hearsay evidence now has turned itself, prima facie, into
piece of admissible evidence with recording of the statement of second
woman with whom applicant no. 1 solemnized his second marriage. This
woman has confirmed the fact that by resorting to deceptive means and
suppressing the material facts from her, applicant no. 1 induced her in
performing marriage with him. She has also stated in about few months
into her marriage with applicant no. 1, that applicant no. 1 admitted to
her that his first wife was alive, which fact was personally verified by
this woman and found to be correct. We, therefore, we do not find any
substance in the said submission of the learned Counsel for the
applicants.
7. It is further submitted by the learned Counsel for the
applicants that the second woman with whom applicant no. 1 performed
his second marriage was an educated woman and was expected to make
inquiry about the deeds, character, background and actions of applicant
no. 1, perhaps suggesting that while applicant no. 1 could do anything,
could also be reckless, but the second woman can ill-afford to do it; that
she only has to make enquiry and find for herself if the applicant no. 1
was worthy of being her consort or not. In other words, according to her,
it was the responsibility of the woman to not trust such a man and first
know about him only upon making inquiry about his character,
background and history, before agreeing to marry him. The argument
does not impress us. Reasons are not too far to seek. In India marriage is
considered to be a sacrament wherein each of the parties to marriage is
expected to act honestly and remain faithful to each other. They must
not suppress from each other any material facts which may have a
bearing upon the marital bond. It is only when they conduct themselves
in a clean and faithful manner that a bond of trust, love and affection is
forged between them. No marriage can remain a sacrament, if parties to
the marriage do not come clean about their past and do not trust,
respect and love each other. Here in this case, applicant no. 1 has, prima
facie, breached the trust of second woman with whom he performed his
second marriage during subsistence of his first marriage and also of his
first wife, the non-applicant no. 2. The argument is, in our considered
opinion, outlandish and hence, rejected.
8. It is further submitted by the learned Counsel for the
applicants that the investigation carried out by the Police, in this case, is
faulty, as no sufficient material has been collected, no photograph has
been clicked and no statements of independent and relevant witnesses
have been recorded. On going through the statements of witnesses, at
least at this stage, we find that there is hardly any inadequacy or lacuna
in the investigation made by the Police. If any inadequacy is discovered
later-on, the Investigation Officer would be at liberty to make further
investigation in the matter and file supplementary charge-sheet with the
permission of the concerned Court. The argument, therefore, can not be
accepted and it is rejected.
9. It is also submitted by the learned Counsel for the applicants
that applicant nos. 5, 6 and 7, relatives of the husband, had never given
their consent for performance of second marriage by applicant no. 1
while his first marriage was alive. On going through the charge-sheet,
we have not come across statement of any witness who agrees that there
was opposition made by applicant nos. 5, 6 and 7 to the second marriage
of applicant no. 1 with another woman, rather the statements of
witnesses show that all of them had prima facie actively encouraged the
applicant no. 1 to perform the second marriage, they themselves had
arranged the second marriage, they were present at the time of
solemnization of his second marriage and had even falsely informed the
second woman that first wife of applicant no. 1 was dead. Therefore,
such argument cannot be accepted and is rejected. If at all it is to be
made, it may be made at the time of trial, where it can be appreciated
properly in the light of recorded evidence by the trial Court.
10. It would be now clear that an attempt made by the
applicants to invoke inherent power of this Court under Section 482 of
the Cr.P.C. is nothing but an abuse of process of law and, therefore, this
application deserves to be dismissed with exemplary costs.
11. The application is dismissed with costs of Rs.25,000/-
(Rupees Twenty Five Thousands only) to be deposited by the applicants
in the account of High Court Legal Services Sub-Committee, Nagpur
within a period of four weeks from the date of the order, failing which,
the Secretary, High Court Legal Services Sub-Committee, Nagpur shall
take steps for realising the amount of costs by considering it as fine
imposed by this Court.
(M. W. CHANDWANI, J.) (SUNIL B. SHUKRE, J.)
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