High Court Punjab-Haryana High Court

Harbans Kaur And Another vs State Of Punjab And Others on 26 March, 2009

Punjab-Haryana High Court
Harbans Kaur And Another vs State Of Punjab And Others on 26 March, 2009
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 4

authorised 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 5

age 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 6

offence 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”