RAVINDER KAURversusANIL KUMAR

                   [2015] 4 S.C.R. 551


                    RAVINDER KAUR                           A

                            v.
                      ANIL KUMAR

           (Criminal Appeal No. 457 of 2008)                B

                     APRIL 09, 2015

 [JAGDISH SINGH KHEHAR AND S.A. BOBDE, JJ.]

    Penal Code, 1860 - ss. 493 and 494 - Complaint by C
wife against her husband ulss. 493, 494, 495, 496, 420,
506 rlw. s/ 1208 /PC - Alleging that the husband deceitfully
co-habited with her even after obtaining ex-parte decree of
divorce against her - Complaint not entertained by courts
                                                             0
below - Appeal limited to the a/legation ulss. 493 and 494
alone - Held: In view of the fact that the ex-parte decree
was subsequently set aside, the matt:imonial ties would be
deemed to subsist during the alleged period - Hence, the
charge uls. 493 not made out and The offence u/s. 494 is E
compounded in terms of s. 320 Cr.PC - The husband is
directed to pay a sum of Rs. 5 /akhs as compensation to
the wife - Code of Criminal Procedure, 1973 - s. 320.

    Code of Criminal Procedure, 1973 - s. 300 F
Explanation - Complaint u/s. 376 /PC - Accused
discharged and the order attained finality - Subsequent
complaint ulss. 493, 494, 495, 496, 506 rlw. s. 1208 /PC
on the same set of facts - Maintainability of - Held: In view
of Explanation to s. 300, second proceedings would not be G
barred because no trial was conducted in previous
proceedings and discharge of the accused therein cannot
be construed as acquittal.

                           551                              H
552      SUPREME COURT REPORTS              [2015] 4 S.C.R.

A      Disposing of the appeal, the Court
       HELD: 1. It cannot be said that Section 300 Cr.P.C.
  will be an embargo to obstruct the right of the
  appellant to file a second complaint against the
B respondent. The respondent had not been tried,
  in furtherance of the previous complaint made by the
  appellant, u/s. 376 of IPC. The respondent had been
  discharged in furtherance of the complaint made by
  the appellant, without any trial. The explanation u/s.
c 300 Cr.P.C. clearly mandates that the dismissal of
  a complaint, or the discharge of an accused, would
  not be construed as an acquittal, for the purposes
  of this Section. Therefore, the proceedings in the
  second complaint would not be barred, because no
D trial had been conducted against the respondent, in
  furtherance of the first complaint. Thus, it is open
  to the appellant, to press the accusations levelled by
  her, through her second complaint. [Para 8] [558-E-H;
  559-A-C]
E
       2. To satisfy the ingredients of s. 493 IPC the man
  concerned should have deceived the woman, to
  believe the existence of matrimonial ties with her. And
  based on the aforesaid belief, the man should have
F cohabited with her. In the present case, consequent
  upon the passing of the order dated 19.02.1996
  (whereby the ex-parte decree dated 08.01.1994 was
  set aside), the matrimonial ties between the appellant
  and the respondent, will be deemed to have subsisted
G during the entire period under reference (08.01.1994
  to 23.06.1994). In fact, the accusation of the appellant,
  on the aforesaid premise, in the first complaint filed
  by the appellant against the respondent (under
  Section 376 IPC) was not entertained, and the
H respondent was discharged, just because of the
           RAVINDER KAUR v. ANIL KUMAR                       553


above inference. Therefore, the charge against the A
respondent is not made out, u/s. 493 IPC, because the
respondent could not have deceived the appellant of
the existence of a "lawful marriage", when a lawful
marriage indeed existed between the parties, during
the period under reference. [Para 9] [559-G-H; 560-A,F- B
H; 561-A-B]

    3. Section 494 IPC is compoundable. In view of
the facts and circumstances of this case, specially the
factual position as has emerged after the ex-parte C
decree of divorce was set aside, the best course
for the parties is to settle their dispute amicably.
Section 320 Cr.P.C. is an avenue available to the
parties, for such resolution. In view of the consent
expressed by the appellant to this Court that she D
would have no objection to the compounding of the
offence under Section 494 IPC, the compounding of
complaint made by the appellant with reference to s.
494 IPC is directed. The respondent is further directed
to pay a sum of Rs. 5 lakhs, as compensation to the E
appellant. [Paras 10 and 12] [561-B,H; 562-A-C]

   CRIMINAL APPELLATE JURISDICTION: Criminal
Appeal No. 457 of 2008.
                                                              F
    From the Judgment and Order dated 10.01.2007 of the
High Court of Punjab and Haryana at Chandigarh in Criminal
Misc. No. 50496-M of 2003.

   Ajay K. Singh, S. K. Pabbi, Shikha Roy, S. K.              G
Sabharwal for the Appellant.

    K. G. Bhagat, Rahul Dagar, Vineet Bhagat, Debasis
Misra for the Respondent.

    The Judgment of the Court was delivered by                H
554      SUPREME COURT REPORTS                [2015] 4 S.C.R.


A      J.S.KHEHAR, J. 1. The appellant (Ravinder Kaur) and
  the respondent (Anil Kumar) got married on 14.08.1991.
  Soon thereafter, the respondent preferred a petition
  seeking divorce from the appellant before the Additional
  District Judge, Ropar. Having received summons in the
B above-mentioned case, the appellant entered appearance
  before the Additional District Judge, Ropar, on
  08.10.1992. On the following day, i.e., on 09.10.1992,
  the respondent withdrew the petition filed by him under
  Section 13 of the Hindu Marriage Act, 1955.
c
       2. The respondent filed a second divorce petition
  on 30.04.1993, under Section 13 of the Hindu Marriage Act,
  1955, on the same factual premise and grounds (as
  the earlier petition), before the Additional District Judge,
D Chandigarh. Proceedings were conducted in the second
  divorce petition, in the absence of the appellant, and an
  ex-parte decree of divorce·was granted to the respondent,
  on 08.01.1994. It was the case of the appellant before this
  Court, that the respondent did not inform her, that the
E matrimonial ties between the parties had come to an end,
  by the decree of divorce dated 08.01.1994. And under the
  impression, that the marriage was subsisting, he continued
  his conjugal relationship with the appellant, as her
F husband, by deception.

        3. It was also the case of the appellant, that on
  23.06.1994 the respondent married Sunita Rani. It was,
  thereupon, that the appellant became aware (on 23.06.1994
  i.e., on the occasion of his marriage with Sunita Rani)
G about the fact, that the respondent had been granted an
  ex- parte decree of divorce on 08.01.1994 (by the
  Additional District Judge, Chandigarh). Within six days,
  of her coming to know, about the above ex- parte decree
H of divorce, the appellant preferred an application, for
            RAVINDER KAUR v. ANIL KUMAR                    555
                  [J. S. KHEHAR, J.]

setting aside the said ex-parte decree, on 29.06.1994. A
The same was allowed by the Additional District Judge,
Chandigarh, on 19.02.1996. In sum and substance,
therefore, the matrimonial ties between the appellant and
the respondent came to be restored, as if the marital
relationship had never ceased.                            B

     4. Based on the fact, that the respondent had
continued the sexual relationship with the appellant, for the
period from 08.01.1994 (when the ex-parte decree of
divorce was passed) till he married Sunita Rani on C
23.06.1994, the appellant preferred a complaint before the
Judicial Magistrate 1st Class, Kharar, under Section 376 of
the Indian Penal Code. It is not a matter of dispute, that
the respondent was discharged from the above
proceedings. In fact, no trial came to be conducted in D
furtherance of the above complaint made by the appellant.
The above order of discharge, was assailed by the
appellant, before the High Court of Punjab and Haryana, at
Chandigarh (hereinafter referred to as 'the High Court').
The High Court affirmed the order of discharge, on E
10.07.1997. Dissatisfied with the order of discharge, as
also, the order passed by the High Court, the appellant
approached this Court. This Court declined to interfere with
the above orders.
                                                              F
     5. On the same factual premise, as has been noticed
in the foregoing paragraphs (wherein the appellant had
filed a complaint for initiation of proceedings under Section
376 of the Indian Penal Code), the appellant filed a second
complaint, this time accusing the respondent of offences G
under Sections 493, 494, 495, 496, 420, 506 read with
Section 120- B of the Indian Penal Code. The Judicial
 Magistrate 1st Class, Kharar, did not entertain the
aforementioned complaint filed by the appellant, and H
556       SUPREME COURT REPORTS                  [2015] 4 S.C.R.


A dismissed the same vide an order dated 27 .11.2002.
  Dissatisfied with the aforesaid order, the appellant preferred
  a revision petition, assailing the above order dated
  27.11.2002, before the Sessions Judge, Roopnanagr. The
  aforesaid revision petition was dismissed on 04.09.2003.
B The order dated 04.09.2003 was assailed by the appellant
  before the High Court, through Criminal Misc.No.50496-
  M of 2003. The aforesaid Criminal Miscellaneous
  Petition, was dismissed by the High Court on 10.01.2007.
  The order passed by the High Court on 10.01.2007 is a
C subject matter of challenge through the instant appeal.

       6. During the course of hearing, learned counsel for
  the appellant very fairly asserted, that the claim raised by the
  appellant in the complaint, which is a subject matter of the
D present consideration, can be pressed against the
  respondent, only with reference to the accusations levelled
  by the appellant, under Sections 493 and 494 of the Indian
  Penal Code. It was, therefore, that the instant controversy
  will be examined by us, limited to the allegations made
E by the appellant, under Sections 493and 494 of the Indian
  Penal Code only.

       7. Learned counsel for the respondent, while
  opposing the prayer made on behalf of the appellant
F vehemently contended, that the present proceedings were
  not maintainable against the respondent, in the light of
  Section 300 of the Criminal Procedure Code.             In this
  behalf, it was the submission of the learned counsel for the
  respondent, that it was not open to the appellant to raise
G a claim against the respondent, so as to subject the
  respondent to a trial again, on the same facts as in
  the earlier complaint, even for an offence, other than the one,
  with reference to which the earlier compalint was filed (under
H Section 376 of the Indian Penal Code). To examine the
            RAVINDER KAUR v. ANIL KUMAR                         557
                  [J. S. KHEHAR, J.]

veracity of the contention raised by the learned counsel         A
for the respondent, Section 300 of the Code of Criminal
Procedure is being extracted hereunder:

    "300. Person once convicted or acquitted not to be
    tried for same offence.                                      B

     (1) A person who has once been tried by a Court of
     competent jurisdiction for an offence and convicted or
     acquitted of such offence shall, while such conviction
     or acquittal remains in force, not be liable to be tried    c
     again for the same offence, nor on the same facts for
     any other offence for which a different charge from the
     one made against him might have been made under
     sub- section (1) of section 221, or for which he might
     have been convicted under sub-section (2) thereof.          o
     (2) A person acquitted or convicted of any offence may
     be afterwards tried, with the consent of the State
     Government, for any distinct offence for which a
     separate charge might have been made against him            E
     at the former trial under sub- section (1) of section
     220.

     (3) A person convicted of any offence constituted
     by any act causing consequences which, together F
     with such act, constituted a different offence from that
     of which he was convicted, may be afterwards tried for
     such last- mentioned offence, if the consequences had
     not happened, or were not known to the Court to have
     happened, at the time when he was convicted.             G

     (4) A person acquitted or convicted of any offence
     constituted by any acts may, notwithstanding such
     acquittal or conviction, be subsequently charged with,
     and tried for, any other offence constituted by the         H
558         SUPREME COURT REPORTS                  [2015] 4 S.C.R.


A          same acts which he may have committed if the Court
           by which he was first tried was not competent to
           try the offence with which he is subsequently charged.

           (5) A person discharged under section 258 shall not
B          be tried again for the same offence except with the
           consent of the Court by which he was discharged
           or of any other Court to which the first- mentioned
           Court is subordinate.

c          (6) Nothing in this section shall affect the provisions of
           section 26 of the General Clauses Act, 1897, (10 of
           1897 ) or of section 188 of this Code.

           Explanation.- The dismissal of a complaint, or the
           discharge of the accused, is not an acquittal for the
D
           purposes of this section."

           8. Having perused Section 300, we are satisfied, that
      the submission advanced at the hands of the learned counsel
      for the respondent, namely, that Section 300 of the Criminal
E     Procedure Code, will be an embargo to obstruct the right
      of the appellant to file a second complaint against the
      respondent, is not justified. Our above determination is
      based on the fact, that the respondent had not been
F     tried, in furtherance of the previous complaint made by
      the appellant, under Section 376 of the Indian Penal Code.
      The contention of the learned counsel for the appellant, that
      the respondent had been discharged in furtherance of the
      complaint made by the appellant, without any trial having
G     been conducted against him (the respondent), was not
      disputed. Based on the above factual contention,
      learned counsel for the appellant had placed emphatic
      reliance, on the explanation under Section 300 of the
      Criminal Procedure Code. The explanation relied upon,
H     clearly mandates that the dismissal of a complaint, or
            RAVINDER KAUR v. ANIL KUMAR                      559
                  [J. S. KHEHAR, J.]

the discharge of an accused, would not be construed as A
an acquittal, for the purposes of this Section. In this view of
the matter, we are in agreement with the contention
advanced at the hands of the learned counsel for the
appellant. We are of the considered view, that proceedings
in the second complaint would not be barred, because no B
trial had been conducted against the respondent, in
 furtherance of the first complaint. Having so concluded, it
emerges that it is open to the appellant, to press the
accusations levelled by her, through her second complaint,
referred to above.                                              C

     9. It is, therefore, that we shall now examine the
present controversy, with reference to Sections 493 and 494
of the Indian Penal Code, which admittedly survive. The
contention of the learned counsel for the respondent, with D
reference to Section 493 of the Indian Penal Code was, that
the ingredients of the offence under Section 493 were not
made out, even if the factual position, as has been
asserted by the appellant, is accepted. Section 493
of the Indian Penal Code is being extracted hereunder: E

     "493. Cohabitation caused by a man deceitfully
     inducing a belief of lawful marriage.-Every man who
     by deceit causes any woman who is not lawfully
     married to him to believe that she is lawfully married F
     to him and to cohabit or have sexual intercourse
     with him in that belief, shall be punished with
     imprisonment of either description for a term which
     may extend to ten years, and shall also be liable to
     fine."                                                 G

A perusal of the above-extracted provision reveals, that to
satisfy the ingredients thereof, the man concerned should
have deceived the woman, to believe the existence of
matrimonial ties with her. And based on the aforesaid H
560         5UPREME COURT REPORTS                [2015] 4 S.C.R.


A      belief, the man should have cohabited with her. The
       question to be determined on the basis of the factual
       position, as has been noticed hereinabove, is whether in
       the facts and circumstances of this case, it is possible to
       accept such deceit, at the hands of the respondent, even if
B      it is accepted for the sake of arguments, that cohabitation
       continued between the parties between 08. 01.1994 till
      23.06.1994, i.e., from the date when the respondent was
       granted an ex-parte decree of divorce (by the Additional
       District Judge, Chandigarh), till the date when the
C      respondent married Sunita Rani. We are of the considered
      view, that with the setting aside of the ex-parte decree of
      divorce dated 08.01.1994 (on 19.02.1996), it cannot be
       accepted, that there was any break in the matrimonial
D      relationship between the parties. Even the complaint filed
       by the appellant under Section 376 of the Indian Penal
      Code was not entertained (and the respondent was
      discharged), because it came to be concluded, that
      the matrimonial ties between the appellant and the
E     respondent were restored, with the setting aside· of the
      ex-parte decree of divorce, as if the matrimonial
      relationship had never ceased. In sum and substance
      therefore, consequent upon the passing of the order dated
      19.02.1996 (whereby the Additional District Judge,
F     Chandigarh, set aside the ex-parte decree dated
      08.01.1994), the matrimonial ties between the appeli::mt and
      the respondent, will be deemed to have subsisted during
      the entire period under reference (08.01.1994 to
      23.06.1994). In fact, the accusation of the appellant, on
G     the aforesaid premise, in the first complaint filed by
      the appellant against the respondent (under Section 376 of
      the Indian Penal Code) was not entertained, and the
      respondent was discharged, just because of the above
      inference. For exactly the same reason, we are satisfied
H     that the charge against the respondent is not made out,
            RAVINDER KAUR v. ANIL KUMAR                          561
                  [J. S. KHEHAR, J.]

under Section 493 of the Indian Penal, because the A
respondent could not have deceived the appellant of the
existence of a "lawful marriage", when a lawful marriage
indeed existed between the parties, during the period under
reference.
                                                             B
     10. So far as the surviving provision, namely, Section
494 of the,lndian Penal Code is concerned, the same is
compoundable. During the course of hearing, on
08.04.2015, we enquired from the learned counsel for the
appellant, whether the appellant was interested in C
compounding the cause, since we were made aware of the
fact, that the respondent in the meantime had fathered
two children, from Sunita Rani. This proposal was made
by the Court on an oral assertion made at the behest of
the learned counsel representing the respondent, that the D
appellant had also re-married in the meantime, and that, she
had also begotten one son out of her second marriage.

      11. Having obtained instructions, learned counsel for
the appellant very fairly acknowledged, the second marriage E
of the appellant. He also acknowledged, the factum of the
appellant having begotten a son, from her second marriage.
In the changed scenario, learned counsel for the appellant
informed this Court, that the appellant had instructed him,
that a request may be made to the Court, that the F
appellant would have no objection to the compounding of
the offence under Section 494 of the Indian Penal Code,
 in terms of Section 320 of the Code of Criminal Procedure,
with the consent of this Court. The contention of the learned
 counsel for the appellant however was, that the appellant G
 should be awarded reasonable cost, while compounding
 the offence under Section 494 of the Indian Penal Code.

    12. Having given our thoughtful consideration to the facts
and circumstances of this case, specially the factual position    H
562         SUPREME COURT REPORTS              [2015] 4 S.C.R.


A ·as has emerged after the ex-parte decree of divorce
   dated 08.01.1994 (passed by the Additional District
   Judge, Chandigarh) was set aside on 19.02.1996, we are
   of the view, that the best course for the parties is to
   settle their dispute amicably. Section 320 of the Criminal
B Procedure Code is an avenue available to the parties, for
   such resolution. In view of the consent expressed by
   the appellant to this Court through her counsel, we hereby
   direct the compounding of complaint made by the appellant
   with reference to Section 494 of the Indian Penal Code.
C We direct the respondent to pay a sum of Rs.5 lakhs, as
   compensation to the appellant. The respondent shall
   deposit the aforesaid amount in this Court within two
   months from today. It shall be open to the appellant to
   move an application to the Registry of this Court, to
0
   withdraw the aforesaid amount.         ·

          13. The appeal is disposed of in the above terms.
      Kalpana K. Tripathy                    Appeal disposed of.