KUNTI DEVIversusSOM RAJ AND ANR.

A                                 KUNTI DEVI
                                         v.
                              SOM RAJ AND ANR.
                                                                                    ..
                              SEPTEMBER 23, 2004
B
                 [ARIJIT PASAYAT AND C.K. THAKKER, JJ.]


         Ranbir Penal Code, 1989 :

c        Section 494 r/w Section 109-Bigamy-Second marriage during
    subsistence ofa valid marriage-District Court passed a decree for dissolution
    ofmarriage on 9.3.1999-Appeal filed on 8.12.1999-High Court passed an
    order on 24.11.2000 that the husband shall not remarry till further orders-
    Operation of decree passed by District Court stayed-Husband took a plea
D   in appeal that he remarried after decree of divorce was passed but before
    the order of stay-Subsequently, decree of divorce set aside by the High
    Court-Wife filed a complaint alleging that the husband had contracted a
    second marriage during the subsistence of a valid marriage-High Court
    quashed the complaint-Correctness of-Held: The crucial question is when
    the second marriage took place-The dispute is regarding the exact date of
E   second marriage~Hence, matter remitted back to High Court to determine
    the date of second marriage-J & K Criminal Procedure Code, 1989, S. 561
    A-Hindu Marriage Act, 1955, Ss. 9, 13 and 28-Code ofCriminal Procedure,
    1973, s. 482.

F        The appellant-wife filed a petition under Section 9 of the Hindu
    Marriage Act, 1955 for restitution of conjugal rights. The respondent-
    husband filed a petition .under Section 13 of the Act, for a decree of
    dissolution of marriage. The District Court by a judgment dated 9.3.1999
    passed a decree for dissolution of marriage. The appellant-wife filed an
G   appeal on 8-12-1999. On 24.11.2000 the High Court passed an order
    that the respondent-husband shall not remarry till further orders and
    the decree passed by the District Court was stayed. The respondent-
    husband took a plea in the appeal that he had already remarried after
    the decree of divorce was passed but before the order of stay.
    Subsequently, the High Court set aside the decree of divorce.
H
                                        632
                       KUNTI DEVI v. SOM RAJ                           633

     The appellant-wife filed a complaint under Section 494 read with         A
Section 109 of the Ranbir Penal Code, 1989 alleging that the respondent-
husband had contracted a second marriage during the subsistence of a
valid marriage. Placing reliance on Krishna Gopal Divedi v. Prabha Divedi,
AIR 2002 SC 389 a Single Judge of the High Court quashed the complaint
on the ground that after passing of the decree of divorce, and before the     B
same was set aside by the High Court, the husoacd's marriage was
solemnized. Hence the appeal.

     Disposing of the appeal, the Court

      HELD : 1. The impugned order of the Single Judge does not refer         c
to the order of stay passed by a Division Bench of the High Court and
the effect of such an order. It is not in dispute that the order dated
24.11.2000 clearly restrained the respondent-husban~ from remarriage
and the operation of the decree of divorce was stayed. It proceeded on
the basis that the second marriage of the husband took place on 8.3.2001
and applying the ratio in Krishna Gopal 's case it was held that no offence   D
was made out. The High Court proceeded on the basis as if the second
marriage took place on 8.3.2001. There is a great deal of factual
distinction between Krishna Gopal's case and the case at hand. In Krishna
Gopal's case the factual position noticed by this Court goes to show that
there was no order of stay restraining remarriage. There is a dispute,
                                                                              E
as presently raised by the respondent-husband, that the date of marriage
was much ·before the date on which the order of stay was passed and
subsequent to the date on which the decree for dissolution of marriage
was passed. (636-G-H; 637-A-B)

      Krishna Gopal Divedi v. Prabha Divedi, AIR (2002) SC 389, held          F
 inapplicable.

       2. In view of the aforesaid factual controversy, this is a fit case
 where the matter needs to be reheard by the High Court. While
 considering the matter afresh, the effect of the order of stay dated
--24.11.2000 passed by a Division Bench of the High Court shall be taken      G
  note of. Much would depend on the date when the second marriage took
  place. There is no dispute that the respondent-husband has remarried.
 The crucial question is when the remarriage took place. All these aspects
 are to be adjudicated by the High Court while dealing with the matter
 afresh. (637-C-D]                                                            H
     634                   SUPREME COURT REPORTS (2004] SUPP. 4 S.C.R.

A        CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No.
     1066 of 2004.

         From the Judgment and Order dated 26.3.2003 of the Jammu &
     Kashmir High Court in 561-A/Crl. P.C No. 76 of 2002.

B          S.S. Jauhar and Prabhjit Jauhar for the Appellant.

         Shambhu Pd. Singh, Ms. Manjula Gupta, M.D. Pandeya and Prem
     Sunder Jha for the Respondents.

C          The Judgment of the Court was delivered by

           ARIJIT PASAYAT, J. : Leave granted.

          Appellant calls in question legality of the judgment passed by a learned
     Single Judge of the High Court of Jammu and Kashmir quashing the
D    proceedings registered on the basis of a complaint filed by the appellant, in
     exercise of powers under Section 561-A of the Jammu & Kashmir Code of
     Criminal Procedure, 1989 (in short 'J&K Cr.P.C. ') which is akin to Section
     482 of the Code of Criminal Procedure, 1973 (in short the 'Code').
                                                                                :

           Background facts necessary for disposal of the appeal in a nutshell are
E    as follows:

            The appellant (hereinafter referred to as the 'wife') and respondent No. l
      (hereinafter referred to as the 'husband') entered into wedlock on 8.5.1989.
      Alleging that the husband had abandoned .her company, the wife filed a
F     petition under Section 9 of the Hindu Marriage Act, 1955 (in short the
      'Marriage Act') for restitution of conjugal rights. The husband also filed a
      similar petition on 11.2.1994. The petition filed by the wife was dismissed
     under Order IX Rule 8 of the Code of Civil Procedure, 1908 (in short the
      'CPC'), as the husband agreed to take the wife along with him. The order
     was passed on 24.11.1995. On 15.12.1995, the husband filed a petition under
G    Section 13 of the Marriage Act, inter alia, praying for a decree of dissolution
     of marriage in the court of learned Additional District Judge, Gurdaspur. By
     judgment dated 9.3.1999, the learned Additional District Judge, Gurdaspur
     passed a decree for dissolution of marriage on th~ ground of desertion. On
     8.12.1999, an appeal was filed in terms of Section 28 of the Marriage Act
.H   before the Punjab and Haryana High Court. A prayer was also made for
                KUNTI DEVI v. SOM RAJ (PASAYAT, J.]                        635

staying operation of the decree dated 9 .3 .1999. It was also prayed that the      A
husband should be restrained from re-marrying. As there was delay in filing
the appeal, the High Court first took up the application for condonation of
delay. By a detailed order dated 14.8.2000 in CM No.945-Cl of2000 ill FAO
No.14-M of2000, the delay was condoned. The condonation application was
taken up after due notice to the respondents in the first appeal and learned
counsel for the parties were heard on the question of condonation of delay.
                                                                                   B
Subsequently on 24.11.2000, the High Court passed an order that the husband
shall not re-marry till further orders and the operation of the judgment and
decree passed by the learned Additional IDistrict Judge, Gurdaspur was
stayed. This order has great relevance to the dispute involved in the present
 appeal. Subsequently, according to the wife, the husband re-married on            c
 8.3.2001. The decree of divorce passed by the learned Additional District
Judge, Gurdaspur was set aside by the High Court by judgment dated
 1.5.2001. During the pendency of the appeal, on 19.7.2000, a plea was taken
by the husband before the High Court that he had already remarried after the
decree of divorce was passed. On 19. 7 .2000, a Division Bench of the High
                                                                                   D
 Court adjourned the matter to 27. 7 .2000 to produce the certificate of
 marriage, as in the affidavit of the husband, it was not stated that he had re-
 married or when he had re-married. Apparently, the relevant details were not
 brought to the notice of the High Court. Subsequently, as noted above, on
 14.8.2000, the Court condoned the delay in filing of the appeal and passed
 the order of restraint on 24.11.2000. On 22.11.2001, a complaint was filed        E
 before the learned Chief Judicial Magistrate, Jammu alleging commission of
offence punishable under Section 494 of the Ranbir Penal Code, 1989 (1932
 AD) (in short the 'RPC') read with Section 109 RPC alleging that during
 subsistence of a valid man:iage, the husband had contracted second marriage
 with respondent No.3- Smt. Usha on 8.3.2001. The learned Judicial Magistrate
                                                                                   F
 1st Class cum Sub-Judge, Jammu took cognizance of the offence and issued
 bailable warrants against accused No. I (the husband), accused No.2 (father
 of the husband) and accused No.4 (father of Smt. Usha). Though in the
 complaint, eight persons were named as accused persons, as noted above,
 bailable warrants were issued in respect of three persons and it was noticed
 that t~e offence punishable under Section 494 RPC was exclusively triable         G
 by the Court of Sessions. The date for appearance before the Court of
 Sessions was fixed to 15.3.2001. All the eight persons, who were impleaded
 as accused persons in the complaint petition filed a petition in terms of
 Section 561-A primarily on the ground that after passing of the decree, and
 before the same was set aside by the High Court of Punjab and Haryana on          H
    636                   SUPREME COURT REPORTS [2004] SUPP. 4 S.C.R.

A   1.5.2001, the marriage between the husband and Smt. Usha was solemnized.
    Placing reliance on a decision of this Court in Krishna Gopal Divedi v.
    Prabha Divedi, AIR (2002) SC 389, it was held by the High Court that the
    offence punishable under Section 494 RPC was not rr.ade out. Accordingly,
    the proceedings on the basis of the complaint in File No.142 instituted on
    24.11.200 l pending before the learned Judicial Magistrate cum Sub-Judge,
B
    Jammu and the order dated 12.2.2003 taking cognizance of the offence and
    directing process were quashed.

          In support of the appeal, learned counsel for the appellant submitted that
    the High Court did not take note of the fact that there was an order of restraint
c   passed by a Division Bench of the High Court of Punjab and Haryana on
    24.11.2000. The said order was within the knowledge of husband. This fact
    is evid~nt from the fact that the application for condonation of delay was
    contested by him and the application was allowed and delay was condoned.
    The second marriage was solemnized when the order of stay was in operation.
    The decision in Krishna Gopal's case (supra) has no application because in
D
    that case, there was no order of stay in operation. Without analyzing the fact
    situation, the High Court unfortunately held that the matter in dispute was .
    covered by the said judgment.

         In response, learned counsel for the respondent-State submitted that the
E   marriage in fact was solemnized before the order of stay was passed. There
    is no reference to the alleged second marriage by complainant in . the
    complaint petition, apparently because she knew that the marriage .was
    solemnized even before the appeal was admitted. Jn any event; according to
    him, the complaint petition, read as a whole, did not disclose commission of
    any offence and the High Court has rightly exercised jurisdiction under
F
    Section 561-A of the J&K Cr.P.C.

          One significant thing is noticed which has great bearing on the dispute,
    The impugned order of the learned Single Judge does not refer to the order
    of stay passed by a Division Bench of the High Court of Punjab and Haryana
G   and the effect of such order. it is not in dispute that.the order dated 24.11.2000
    cle~ly restrained the husband from re-marriage and the operation of the
    decree of divorce was stayed. It proceeded on the basis that the marriage
    between the husband and Usha took place on 8.3.2001 and applying the ratio
    in Krishna Gopal 's case (supra) it was held that no offence was made out.
    As noted above, the High Court proceeded on the basis as if the marriage
H
                KUNTI DEVI v. SOM RAJ [PASA YAT, J.]                      637

took place on 8.3.2001. There is a great deal of factual distinction between      A
Krishna Gopal's case (supra) and the case at hand. In Krishna Gopal's case
(supra) the factual position noticed by this Court goes to show that there was
no order of stay restraining re~marriage. Again it has to be noted that there
is a dispute, as presently raised by the respondent-husband, that the date of
marriage was much before the date on which the order of stay was passed           B
and subsequent to the date on which the decree for dissolution of marriage
was passed.

      In view of the aforesaid factual controversy, we consider this to be a
fit case where the matter needs to. be re-heard by the High Court. While
considering the matter afresh, the effect of the order of stay dated 24.11.2000   C
passed by a Division Bench of the Punjab and Haryana High Court shall be
taken note of. Much would depend onthe date when the marriage took place.
It is to be noted that there is no dispute that the respondent-husband has
married Usha. The crucial question is when the marriage took place. All
these aspects are to be adjudicated by the High Court while dealing with the      D
matter afresh. Learned Judicial Magistrate issued process only in respect of
accused Nos. l, 2 and 4. That order was not questioned by the appellant
before the higher court. The present appeal stands dismissed against rest of
the accused persons.

     The appeal is accordingly disposed of..                                      E
v.s.s.                                                  Appeals disposed of.