Kumkum Saxena vs Sessions Judge and Others

U.S. Tripathi, J.—Heard learned Counsel for the applicant and learned A.G.A. and perused the record.

This petition u/s 482, Criminal Procedure Code has been filed for quashing the orders dated 6.5.2002 and 20.12.2001 passed by the Sessions Judge, Rampur in Criminal Revision No. 63 of 2002 and Civil Judge (S.D.) Rampur in Criminal Case No. 409 of 2001 respectively.

No summoning order has yet been passed on the application of the applicant treated as complaint by the Magistrate. Before passing summoning order, the accused-opposite parties have no locus to be heard and matter of summoning is between complainant and the Court. Therefore, notices are not being sent to opposite party Nos. 3 to 15 and petition is finally disposed of on hearing the learned Counsel for the applicant and learned A.G.A.

It appears that the applicant was legally wedded wife of opposite party No. 3 Anandveer Saxena. The relation between the spouses became strained and, therefore, the opposite party No. 3 filed Matrimonial Petition No. 106 of 1996, u/s 13 of Hindu Marriage Act for dissolution of marriage between him and the applicant. The above petition was decreed on 2.2.1999 by the Civil Judge (S.D.), Rampur and the marriage between the parties was dissolved.

Aggrieved with the decree of the dissolution, the applicant filed appeal being Appeal No. 190 of 1999 in this Court on 24.2.1999 and also obtained stay order on 16.3.1999.

Thereafter, the applicant came to know that opposite party No. 3 performed his second marriage on 23.6.1999 with one Smt. Sunita opposite party No. 4. The applicant, accordingly, lodged a report at P.S. Kotwali, Rampur, against the opposite party No. 3 Anandveer Saxena on 31.7.1999. The above report was written as non-cognizable report u/s 494, Indian Penal Code Since the report was written as non-cognizance report, the applicant moved an application dated 13.9.1999 before the 1st Additional Chief Judicial Magistrate to direct the police u/s 155(2), Criminal Procedure Code to investigate the case. The learned Magistrate registered the above application as Misc. Case No. 767 of 1999 and instead of making any order on the above application, he treated the above application as complaint and directed the applicant to adduce evidence under Sections 200 and 202, Criminal Procedure Code The complainant examined herself u/s 200, Criminal Procedure Code and her witnesses Rameshwar Prasad and Abhishekh Saxena u/s 202, Criminal Procedure Code Without passing any order u/s 203 or 204, Criminal Procedure Code, the learned Magistrate kept the complaint pending till the decision of the appeal against the order of dissolution of marriage vide order dated 20.12.2001 on the ground that whether offence punishable u/s 494, Indian Penal Code is made out or not shall be considered only on the finding of the appellate court in the appeal.

Aggrieved with the above order, the applicant filed Criminal Revision No. 63 of 2002. The learned Sessions Judge held that the revision was preferred against an interlocutory order which was not maintainable and accordingly, rejected the revision vide order dated 6.5.2002.

It may be mentioned at the very outset that the procedure adopted by the applicant for permission to investigate by moving an application u/s 155(2), Criminal Procedure Code before the Magistrate was wrong as even if the case was investigated and charge-sheet was submitted, the Court could not take cognizance on police report in respect of offence punishable u/s 494, Indian Penal Code (under Chapter XX of the Indian Penal Code) in view of specific bar created u/s 198, Criminal Procedure Code The cognizance of offence punishable under Chapter XX of the Indian Penal Code could only be taken upon a complaint made by some person aggrieved by the offence. However, the learned Magistrate had treated the application as complaint. The learned Counsel for the applicant conceded that he had no grievance against the procedure adopted by the Magistrate treating the application as complaint because cognizance could only be taken on the complaint as required by Section 198, Criminal Procedure Code

The contention of learned Counsel for the applicant was that after enquiry under Sections 200 and 202, Criminal Procedure Code conducted by the Magistrate, he ought to have passed specific order under Sections 203 or 204, Criminal Procedure Code, either rejecting the complaint or summoning the accused. But instead of it, he kept it pending till the decision of the appeal filed against the judgment and decree in Matrimonial petition u/s 13 of the Hindu Marriage Act.

It was further contended by learned Counsel for the applicant that the appeal against the decree of divorce was filed by the applicant on 24.2.1999, within the period of limitation and, therefore, by virtue of Section 15 of the Hindu Marriage Act, 1955, performing of second marriage during the pendency of appeal is unlawful and invalid.

Section 15 of the Hindu Marriage Act, 1955, reads as under:

When a marriage has been dissolved by a decree of divorce and either there is no right of appeal against the decree or, if there is such a right of appeal the time for appealing has expired without an appeal having been presented or an appeal has been presented but has been dismissed, it shall be lawful for either party to the marriage to marry again.

Admittedly, the order passed u/s 13 of the Hindu Marriage Act, 1955, dissolving the marriage between the parties is appealable u/s 28 of the Hindu Marriage Act and limitation for filing appeal is 30 days from the date of decree or order. In case the appeal was filed and was pending the opposite party No. 3 could not legally perform second marriage. Therefore, by virtue of Section 15 of the Hindu Marriage Act, the Magistrate had not to wait till the decision of the appeal as during the pendency of appeal, the opposite party No. 3 had no right to perform second marriage and the learned Magistrate ought to have passed appropriate order on the complaint after enquiry under Sections 200 and 202, Criminal Procedure Code Thus, the petition succeeds.

The petition is, accordingly, allowed and the impugned orders are quashed and the Magistrate is directed to pass appropriate order on the complaint at an early date preferably within 14 days from the date of production of certified copy of this order.