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CR.MA/460/2002 5/ 5 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
MISC.APPLICATION No. 460 of 2002
For
Approval and Signature:
HONOURABLE
MR.JUSTICE J.R.VORA
==========================================
1
Whether
Reporters of Local Papers may be allowed to see the judgment ?
2
To
be referred to the Reporter or not ?
3
Whether
their Lordships wish to see the fair copy of the judgment ?
4
Whether
this case involves a substantial question of law as to the
interpretation of the constitution of India, 1950 or any order
made thereunder ?
5
Whether
it is to be circulated to the civil judge ?
==========================================
MAHENDRABHAI
MOHANLAL PANCHAL & 3
Versus
STATE
OF GUJARAT & 1
==========================================
Appearance
:
MR DIPAK R
DAVE for Applicant Nos.1 - 4.
MR MR MENGDEY
APP for Respondent No.1
RULE SERVED for Respondent
No.2
==========================================
CORAM
:
HONOURABLE
MR.JUSTICE J.R.VORA
Date
: 22/07/2008
ORAL
JUDGMENT
[1] Heard
learned advocate Mr.D. R. Dave for the applicants and learned APP
Mr.M.R.Mengdey for the respondent No.1 ? State. While rule is
served upon the respondent No.2.
[2] As
per the brief facts of the present case that the respondent No.2 ?
Manjulaben, wife of applicant No.1 filed a complaint in the Court of
Metropolitan Magistrate, Court No.18, Ahmedabad which was registered
as Criminal Case No.2734 of 2001 for the offences punishable under
Sections 494 and 114 of the Indian Penal Code. It was alleged in the
complaint by Manjulaben that her husband ? accused No.1, applicant
No.1 herein married to accused No.2 ? Rekhaben, applicant No.2
herein with abetment of accused No.3 and accused No.4 Jayantilal and
Shardaben parents of accused No.2 ? Rekhaben. It was alleged that
before two years of filing of the complaint, complainant ?
Manjulaben was driven out by the applicant No.1 ? husband and
eventhough her marriage with applicant No.1 was subsisting,
applicant No.1 her husband married to accused No.2 ? Rekhaben,
applicant No.2 herein and thereby committed the offence under
Section 494 of the Indian Penal Code with the aid of accused Nos.3
and 4. The complaint came to be filed on 03.12.2001. Learned
Metropolitan Magistrate directed to register the complaint and to
issue summons to the accused i.e. applicants herein and, therefore,
this petition with a request to quash the Criminal Case No.2734 of
2001 filed before the learned Metropolitan Magistrate, Court No.18 at
Ahmedabad along with the order passed by the learned Metropolitan
Magistrate to issue summons against the present applicants.
[3] While
minutely going through the record and evaluating the contentions
raised on behalf of the applicants as well as learned APP
Mr.M.R.Mengdey for the respondent No.1 ? State, it clearly appears
that the complaint came to be filed on 03.12.2001. While as per the
case of the applicants, the marriage between Manjulaben and
Mahendrabhai came to an end by deed of divorce dated 05.07.1998
executed at Thane. Original copy of such deed in Marathi, is placed
on record as Annexure ? B to this petition and translated copy in
English is also placed on record. Learned advocate for the applicants
submitted certified copy of petition and Family Suit No.258 of 2007
along with the decree passed in the said Family Suit. The said
certified copy is taken on record. Now according to the Family Suit
No.258 of 2007, Manjulaben, respondent No.2 herein and the
complainant sought a declaration before the Family Court at Ahmedabad
that her marriage with the applicant No.1 ? Mahendrabhai be
declared as ended on the
strength of deed of divorce which was executed on 05.07.1998 between
the husband Mahendrabhai and wife Manjulaben, since the deed of
divorce was executed, according to the custom prevailing in their
caste. Learned Principal Judge, Family Court No.1, Ahmedabd vide
judgment dated 13.04.2007 was pleased to declare that the deed of
divorce executed between the petitioner i.e. wife Manjulaben and the
respondent i.e. husband Mahendrabhai on 05.07.1998 was legal and
valid and it was further declared by the Family Court that the
petitioner and the respondent had already dissolved their marriage
according to the custom prevailing in their caste by executing the
deed of divorce on 05.07.1998 and from that date, the relationship
between Manjulaben and Mahendrabhai as
of husband and wife came to an end.
[4] Since
the complaint is filed on 03.12.2001 about bigamy under Section 494
of the Indian Penal Code making grievance that husband ?
Mahendrabhai was living with accused No.2 ? Rekhaben for two years
before filing of the complaint and when now it is very clear that on
05.07.1998, divorce took place between Manjulaben and Mahendrabhai,
the question of husband living with second wife, subsisting first
marriage with Manjulaben, would not arise at all. In this view of the
matter, the period which the complainant refers here alleging bigamy
against the accused No.1 ? husband, is the period after the divorce
between the parties came into existence, therefore, there is no
substance in the complaint of bigamy filed by the wife.
[5] In
above view of the matter, this petition deserves to be allowed and it
is, therefore, directed that Criminal Case No.2734 of 2001 filed by
respondent No.2 against the present applicants pending before the
Metropolitan Magistrate, Court No.18, at Ahmedabad is hereby quashed
along with the order passed by the learned Metropolitan Magistrate
upon the complainant on 03.12.2001 to issue summons against the
applicants is hereby also quashed and set aside. Rule is made
absolute to the above extent.
[J.
R. VORA,J.]
vijay
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