Criminal Writ Petition No. 314 of 2009 1
In the High Court of Punjab and Haryana, at Chandigarh.
Criminal Writ Petition No. 314 of 2009
Date of Decision: 26.3.2009
Harbans Kaur and Another
...Petitioners
Versus
State of Punjab and Others
...Respondents
CORAM: HON'BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA.
Present: Kumar Vishav Aggarwal, Advocate
for the petitioners.
Mr.Anter Singh Brar, Deputy Advocate
General, Punjab, for respondents No.1 & 2.
Mr. Ashutosh Gupta, Advocate
for respondent No.3.
Mr. Ashwani Gaur, Advocate
for respondent No.4.
Kanwaljit Singh Ahluwalia, J. (Oral)
Kulwant Kaur and Sunveer Kaur had filed Criminal Misc. No.
M-3773 of 2009 in this Court. The following order was passed by this
Court on 10.2.2009:-
Issue notice of motion to learned Advocate
General, Punjab.
On the asking of the Court Mr. Mehardeep
Singh, learned Advocate General, Punjab, accepts
notice on behalf of the State.
Criminal Writ Petition No. 314 of 2009 2
Petitioners are stated to be adult and have
attained majority. It is stated that they are competent
to solemnize their marriage. Petitioners have
grievance that their marriage is not being accepted
by their parents and relatives. They apprehend
danger to their lives.
Senior Superintendent of Police, Patiala,
is directed to give adequate security and protection
to the newly married couple.
Petition is disposed off”.
This petition has been filed by Harbans Kaur and Rajinder
Singh, parents of Sunveer Kaur under Article 226 of the Constitution of
India that Sunveer Kaur has been illegally detained by Kulwant Kumar,
respondent No.3.
Sunveer Kaur is present in the Court. Her statement has been
recorded separately. She has stated that she intends to stay with her
husband Kulwant Kumar.
Sunita Rani, respondent No.4, first wife of respondent No.3
Kulwant Kumar is also present in the Court. It has been stated that the
marriage of Sunveer Kaur with Kulwant Kumar, respondent No.3 is void.
Two adult persons can stay together even without effecting
marriage. If there is threat to their life and they apprehend danger, this
Court is bound to provide them security.
The submissions made by counsel for the petitioners further
justifie that Sunveer Kaur should be protected so that no harassment is
caused to her life.
Criminal Writ Petition No. 314 of 2009 3
If second marriage is performed by anybody, law take care of
it. Offence of second marriage (bigamy) is a non-cognizable offence.
Section 198 Cr.P.C. read as under:-
“198. Prosecution for offence against
marriage.
(1) No court shall take cognizance of all
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:
Provided that-
(a) Where such person is under the age of
eighteen years, or is an idiot or a lunatic,
or is from sickness or infirmity unable to
make a complaint, or is a woman who,
according to the local customs and
manners, ought not to be compelled to
appear in public, some other person may,
with the leave of the court, make a
complaint on his or her behalf,
(b) Where such person is the husband and he
is serving in any of the Armed Forces of
the Union under conditions which are
certified by his Commanding Officer as
precluding him from obtaining leave of
absence to enable him to make a
complaint in person, some other person
Criminal Writ Petition No. 314 of 2009 4authorised by the husband in accordance
with the provisions of sub-section (4) may
make a complaint on his behalf,
(c) Where the person aggrieved by an
offence punishable under section 494 or
section 495] of the Indian Penal Code (45
of 1860) is the wife, complaint may be
made on her behalf by her father, mother,
brother, sister, son or daughter or by her
father’s or mother’s, brother or sister, or,
with the leave of the court, by any other
person related to her by blood, marriage
or adoption].
(2) For the purpose of sub-section (1), no
person other than the husband of the woman, shall
be deemed to be aggrieved by any offence
punishable under section 497 or section 498 of the
said Code:
Provided that in the absence of the
husband, some person who had care of the woman
on his behalf at the time when such offence was
committed may, with the leave of the court, make a
complaint on his behalf.
(3) When in any case falling under clause (a)
of the proviso to sub-section (1), the complaint is
sought to be made on behalf of a person under the
Criminal Writ Petition No. 314 of 2009 5age of eighteen years or of a lunatic by a person
who has not been appointed or declared by a
competent authority to be the guardian of the person
of the minor or lunatic, and the court is satisfied that
there is a guardian so appointed or declared, the
court shall, before granting the application for leave,
cause notice to be given to such guardian and give
him a reasonable opportunity of being heard.
(4) The authorization referred to in clause (b)
of the proviso to sub-section (1), shall be in writing,
shall be signed or otherwise attested by the
husband, shall contain a statement to the effect that
he has been informed of the allegations upon which
the complaint is to be founded, shall be
countersigned by his Commanding Officer, and shall
be accompanied by a certificate signed by that
Officer to the effect that leave of absence for the
purpose of making a complaint in person cannot for
the time being be granted to the husband.
(5) Any document purporting to be such an
authorization and complying with the provisions of
sub-section (4), and any document purporting to be
a certificate required by that sub-section shall,
unless the contrary is proved, be presumed to be
genuine and shall be received in evidence.
(6) No court shall take cognizance of an
Criminal Writ Petition No. 314 of 2009 6offence under section 376 of the Indian Penal Code
(45 of 1860), where such offence consists of sexual
inter-course by a man with his own wife, the wife
being under fifteen years of age, if more than one
year has elapsed from the date of the commission of
the offence.
(7) The provisions of this section apply to the
abetment of, or attempt to commit an offence as
they apply to the offence.
Section 198 Cr.P.C. provide as to who can prosecute in case
of second marriage. The protection given to Sunveer Kaur and Kulwant
Kumar is only to save their life and liberty. If any party initiate any
proceedings for any offence made out, law will take its own course.
With the observations made above, the present petition is
disposed off.
(Kanwaljit Singh Ahluwalia)
Judge
March 26, 2009
“DK”