As per case facts, the appellant wife and respondent husband married, but the husband later abandoned her. The wife's petition for restitution of conjugal rights was dismissed after the husband ...
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CASE NO.:
Appeal (crl.) 1066 of 2004
PETITIONER:
Kunti Devi
RESPONDENT:
Som Raj and Ors.
DATE OF JUDGMENT: 23/09/2004
BENCH:
ARIJIT PASAYAT & C.K. THAKKER
JUDGMENT:
J U D G M E N T
(Arising out of SLP(Crl.)No. 349 of 2004)
ARIJIT PASAYAT, J
Leave granted.
Appellant calls in question legality of the judgment passed by a
learned Single Judge of the High Court of Jammu and Kashmir quashing
the proceedings registered on the basis of a complaint filed by the
appellant, in exercise of powers under Section 561-A of the Jammu &
Kashmir Code of Criminal Procedure, 1989 (in short 'J&K Cr.P.C.') which
is akin to Section 482 of the Code of Criminal Procedure, 1973 (n short
the 'Code').
Background facts necessary for disposal of the appeal in a
nutshell are as follows:
The appellant (hereinafter referred to as the 'wife') and
respondent No.1 (hereinafter referred to as the 'husband') entered into
wedlock on 8.5.1989. Alleging that the husband had abandoned her
company, the wife filed a petition under Section 9 of the Hindu
Marriage Act, 1955 (in short the 'Marriage Act') for restitution of
conjugal rights. The husband also filed a similar petition on
11.2.1994. The petition filed by the wife was dismissed under Order IX
Rule 8 of the Code of Civil Procedure, 1908 (in short the 'CPC'), as
the husband agreed to take the wife along with him. The order was
passed on 24.11.1995. On 15.12.1995, the husband filed a petition under
Section 13 of the Marriage Act, inter alia, praying for a decree of
dissolution of marriage in the court of learned Additional District
Judge, Gurdaspur. By judgment dated 9.3.1999, the learned Additional
District Judge, Gurdaspur passed a decree for dissolution of marriage
on the ground of desertion. On 8.12.1999, an appeal was filed in terms
of Section 28 of the Marriage Act before the Punjab and Haryana High
Court. A prayer was also made for staying operation of the decree dated
9.3.1999. It was also prayed that the husband should be restrained from
re-marrying. As there was delay in filing the appeal, the High Court
first took up the application for condonation of delay. By a detailed
order dated 14.8.2000 in CM No.945-C1 of 2000 in FAO No.14-M of 2000,
the delay was condoned. The condonation application was taken up after
due notice to the respondents in the first appeal and learned counsel
for the parties were heard on the question of condonation of delay.
Subsequently on 24.11.2000, the High Court passed an order that the
husband shall not re-marry till further orders and the operation of the
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judgment and decree passed by the learned Additional District Judge,
Gurdaspur was stayed. This order has great relevance to the dispute
involved in the present appeal. Subsequently, according to the wife,
the husband re-married on 8.3.2001. The decree of divorce passed by the
learned Additional District Judge, Gurdaspur was set aside by the High
Court by judgment dated 1.5.2001. During the pendency of the appeal, on
19.7.2000, a plea was taken by the husband before the High Court that
he had already remarried after the decree of divorce was passed. On
19.7.2000, a Division Bench of the High Court adjourned the matter to
27.7.2000 to produce the certificate of marriage, as in the affidavit
of the husband, it was not stated that he had re-married or when he had
re-married. Apparently, the relevant details were not brought to the
notice of the High Court. Subsequently, as noted above, on 14.8.2000,
the Court condoned the delay in filing of the appeal and passed the
order of restraint on 24.11.2000. On 22.11.2001, a complaint was filed
before the learned Chief Judicial Magistrate, Jammu alleging commission
of offence punishable under Section 494 of the Ranbir Penal Code, 1989
(1932 AD) (in short the 'RPC') read with Section 109 RPC alleging that
during subsistence of a valid marriage, the husband had contracted
second marriage with respondent No.3- Smt. Usha on 8.3.2001. The
learned Judicial Magistrate Ist Class cum Sub-Judge, Jammu took
cognizance of the offence and issued bailable warrants against accused
No.1 (the husband), accused No.2 (father of the husband) and accused
No.4 (father of Smt. Usha). Though in the complaint, eight persons were
named as accused persons, as noted above, bailable warrants were issued
in respect of three persons and it was noticed that the offence
punishable under Section 494 RPC was exclusively triable by the Court
of Sessions. The date for appearance before the Court of Sessions was
fixed to 15.3.2001. All the eight persons, who were impleaded as
accused persons in the complaint petition filed a petition in terms of
Section 561-A primarily on the ground that after passing of the decree,
and before the same was set aside by the High Court of Punjab and
Haryana on 1.5.2001, the marriage between the husband and Smt. Usha was
solemnized. Placing reliance on a decision of this Court in Krishna
Gopal Divedi v. Prabha Divedi (AIR 2002 SC 389), it was held by the
High Court that the offence punishable under Section 494 RPC was not
made out. Accordingly, the proceedings on the basis of the complaint in
File No.142 instituted on 24.11.2001 pending before the learned
Judicial Magistrate cum Sub-Judge, Jammu and the order dated 12.2.2003
taking cognizance of the offence and directing process were quashed.
In support of the appeal, learned counsel for the appellant
submitted that the High Court did not take note of the fact that there
was an order of restraint passed by a Division Bench of the High Court
of Punjab and Haryana on 24.11.2000. The said order was within the
knowledge of husband. This fact is evident from the fact that the
application for condonation of delay was contested by him and the
application was allowed and delay was condoned. The second marriage was
solemnized when the order of stay was in operation. The decision in
Krishna Gopal's case (supra) has no application because in that case,
there was no order of stay in operation. Without analyzing the fact
situation, the High Court unfortunately held that the matter in dispute
was covered by the said judgment.
In response, learned counsel for the respondent-State submitted
that the marriage in fact was solemnized before the order of stay was
passed. There is no reference to the alleged second marriage by
complainant in the complaint petition, apparently because she knew that
the marriage was solemnized even before the appeal was admitted. In any
event, according to him, the complaint petition, read as a whole, did
not disclose commission of any offence and the High Court has rightly
exercised jurisdiction under Section 561-A of the J&K Cr.P.C.
One significant thing is noticed which has great bearing on the
dispute. The impugned order of the learned Single Judge does not refer
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to the order of stay passed by a Division Bench of the High Court of
Punjab and Haryana and the effect of such order. It is not in dispute
that the order dated 24.11.2000 clearly restrained the husband from re-
marriage and the operation of the decree of divorce was stayed. It
proceeded on the basis that the marriage between the husband and Usha
took place on 8.3.2001 and applying the ratio in Krishna Gopal's case
(supra) it was held that no offence was made out. As noted above, the
High Court proceeded on the basis as if the marriage took place on
8.3.2001. There is a great deal of factual distinction between Krishna
Gopal's case (supra) and the case at hand. In Krishna Gopal's case
(supra) the factual position noticed by this Court goes to show that
there was no order of stay restraining re-marriage. Again it has to be
noted that there is a dispute, as presently raised by the respondent-
husband, that the date of marriage was much before the date on which
the order of stay was passed and subsequent to the date on which the
decree for dissolution of marriage was passed.
In view of the aforesaid factual controversy, we consider this to
be a fit case where the matter needs to be re-heard by the High Court.
While considering the matter afresh, the effect of the order of stay
dated 24.11.2000 passed by a Division Bench of the Punjab and Haryana
High Court shall be taken note of. Much would depend on the date when
the marriage took place. It is to be noted that there is no dispute
that the respondent-husband has married Usha. The crucial question is
when the marriage took place. All these aspects are to be adjudicated
by the High Court while dealing with the matter afresh. Learned
Judicial Magistrate issued process only in respect of accused Nos. 1,2
and 4. That order was not questioned by the appellant before the
higher court. The present appeal stands dismissed against rest of the
accused persons.
The appeal is accordingly disposed of.
In a pivotal ruling, the Supreme Court of India addressed critical questions surrounding bigamy cases in India and the scope of the High Court's inherent powers Cr.P.C. 482. This judgment, now prominently featured on CaseOn, serves as an essential reference for understanding the legal implications of remarriage following a divorce decree, especially when subject to a stay order from a higher court.
The case revolves around a complaint filed by Kunti Devi (the wife) against her husband, Som Raj, alleging bigamy. The crux of the dispute lies in the timing of the husband's second marriage in relation to a divorce decree and subsequent stay orders from the High Court.
The primary legal issues that emerged for the Supreme Court's consideration were:
This section criminalizes marrying again during the lifetime of a husband or wife, when the first marriage is still valid and subsisting. A divorce decree, while in effect, would typically invalidate the first marriage for the purpose of this section. However, the legal status of a decree under appeal and subject to a stay order is paramount.
These provisions grant High Courts the power to pass any orders necessary to give effect to any order under the Code, or to prevent abuse of the process of any Court, or otherwise to secure the ends of justice. This power, though wide, must be exercised judiciously and not to stifle legitimate proceedings where a prima facie case exists.
A stay order from a higher court temporarily suspends the operation of a lower court's order or decree. If a divorce decree is stayed, its legal effect is put on hold, and for all practical purposes, the previous marital status might be deemed to subsist until the stay is lifted or the appeal decided.
For legal professionals analyzing complex rulings like this, CaseOn.in offers invaluable assistance through its 2-minute audio briefs, providing quick and clear summaries of specific judgments, making it easier to grasp the nuances and implications efficiently.
The Supreme Court critically noted that the learned Single Judge of the J&K High Court, in quashing the proceedings, completely overlooked the significant order passed by a Division Bench of the Punjab and Haryana High Court on November 24, 2000. This order had not only condoned the delay in the wife's appeal but also explicitly stayed the operation of the divorce decree and restrained the husband from remarrying. This vital fact was central to the wife's bigamy complaint.
The Supreme Court found a clear factual distinction between the present case and *Krishna Gopal Divedi v. Prabha Divedi*, which the J&K High Court had relied upon. In *Krishna Gopal Divedi*, there was no restraining order or stay on the divorce decree. In contrast, in Kunti Devi's case, such an order was in place and, according to the wife, well within the husband's knowledge.
The crucial point, as identified by the Supreme Court, was the precise date of the husband's second marriage. If the marriage occurred after November 24, 2000, while the stay order and restraint were active, it would have significant implications for the bigamy charge, making the High Court's failure to consider it a grave error.
Given the significant factual controversy and the High Court's oversight of a critical stay order, the Supreme Court ruled that the matter warranted a fresh hearing by the High Court. The High Court was directed to reconsider the case, specifically taking into account:
The appeal was accordingly disposed of, with the direction that the High Court would adjudicate these aspects for accused Nos. 1, 2, and 4. The appeal was dismissed against the remaining accused persons as the Magistrate's order was not questioned for them by the appellant.
This Supreme Court judgment is an indispensable read for legal professionals and students for several reasons:
Disclaimer: All information provided in this article is for informational purposes only and does not constitute legal advice. Readers should consult with a qualified legal professional for advice on any specific legal matter.
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