ORDER
K. Thankappan, J.
1. The petitioners are accused Nos. 2 to 9 in C.C. No. 711 of 2003 on the file of the Judicial First Class Magistrate’s Court I, Attingal. They seek to quash the entire proceedings in the above Calendar case.
2. The above case was taken on file on the basis of Annexure A-1 complaint filed by the de facto complainant/first respondent herein. The allegation against the petitioners is that they along with the first accused committed offence punishable under Section 494 read with Section 120-B, I.P.C. As per the complaint, the marriage between the first accused and the first respondent was solemnised on 30.10.1995 at the Kadinamkulam S.N.D.P. Sakha Mandiram as per the customary rites of the community to which they belonged and the marriage was registered at the Kadinamkulam Panchayat. After the marriage, they lived together for about a month in the matrimonial house. It is further alleged in the complainant that the first accused then went to the Gulf country after leaving the first respondent at her parental house and that even though he came on leave on two occasions, he did not make any attempt to take the first respondent to his house. While so, the first respondent filed O.P. No. 188 of 1997 before the Family Court, Thiruvananthapuram claiming maintenance from the first accused. The Family Court allowed the original petition and directed the first accused to pay Rs. 400 per month to the first respondent. According to the first respondent, in spite of the above direction, no amount has been paid to her. It is further alleged in the complaint that at the instigation of the petitioners herein, the first accused married the sixth accused/5th petitioner herein on 5.6.2003 at Sarkara Devi Temple, Varkala which comes under the Travancore Devaswom Board. This marriage was also entered in the register and certificate was issued from the temple. According to the first respondent, the petitioners herein persuaded the first accused to conduct the second marriage and hence they committed offence punishable under Section 494 read with Section 120-B, I.P.C.
3. Learned Counsel appearing for the petitioners submits that Annexure A-1 complaint does not constitute any offence as alleged against the petitioners or the first accused. The first accused is not a party to this Crl. Miscellaneous case. The question to be decided is whether the petitioners conspired together with the first accused and persuaded him to conduct a second marriage during the subsistence of his marriage with the first respondent.
4. Learned Counsel for the petitioners contends that the offence under Section 494, I.P.C. will be attracted only on two grounds: (i) if the alleged second marriage is declared void by a Court of law, and (ii) it should be proved that the first marriage is still in existence. Counsel further submits that Annexure A-1 complaint does not show that the alleged second marriage was declared void by any Court of Law. Counsel also invited the attention of this Court to Sections 5 and 11 of the Hindu Marriage Act, 1955 which states the circumstances under which a marriage can be declared void.
5. To attract an offence punishable under Section 494, I.P.C., it should be proved that the alleged second marriage had taken place during the subsistence of the first marriage. Section 494, I.P.C. reads as follows:
494, Marrying again during lifetime of husband or wife.–Whoever, having a husband or wife living, marries in any case in which such marriage is void by reason of its taking place during the life of such husband or wife, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.
6. A reading of the above section would clearly indicate that a second marriage conducted during the subsistence of the first marriage is void. Even though the provisions of the Hindu Marriage Act contemplate the circumstances under which a marriage can be declared void by a Court of law, the provisions of Section 494, I.P.C. declares a marriage void if it takes place during the life of a husband or wife. Learned Counsel for the petitioners also brought to the notice of this Court the decision of the Apex Court reported in Rajathi v. Ganesan 1999 (3) K.L.T. 872. In the above judgment, the Apex Court only considered the question of maintenance under Section 125(3), Cr.P.C. if there is just ground for the wife’s refusal to live with her husband. The facts of the case referred to above are not applicable to the case on hand. Hence, the first contention raised by the learned Counsel for the petitioners is not sustainable.
7. The second ground urged by the learned Counsel for the petitioners is that Annexure A-1 does not constitute any offence against the petitioners. It is specifically stated in Annexure A-1 complaint that all the petitioners conspired together with the first accused and they persuaded the first accused to conduct a second marriage. It has also come out in evidence that the petitioners had participated in the marriage ceremony. On a reading of Annexure A-1 complaint and considering the contentions raised on behalf of the first respondent, this Court is not inclined to invoke the jurisdiction under Section 482, Cr.P.C. for quashing the proceedings in C.C. No. 711 of 2003. It is also reported that the matter is ripe for hearing and summons has already been issued to the accused.
In the above circumstances, the Crl.M.C. is dismissed.