Case Facts:
IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Miscellaneous No.16548 of 2010 ====================================================== Ram Pukari Devi .... .... Petitioner/s Versus The State Of Bihar & Anr .... .... Opposite Party/s ====================================================== Appearance : For the Petitioner/s : Mr. Yogendra Prasad Sinha Mr. Suresh Prasad For the Opposite Party No.2 : Mr. Ram Kishore Singh, Opposite Party No.2 For the State : Mr. S.N.Shukla, A.P.P. ====================================================== CORAM: HONOURABLE MR. JUSTICE ADITYA KUMAR TRIVEDI ORAL ORDER 3 20-07-2012 Heard learned counsel for the petitioner, learned counsel for the Opposite Party No.2 as well as learned A.P.P. Petitioner has challenged the order dated 18.11.2005 passed by Shri M.K.Srivastava, Judicial Magistrate, Gopalganj in Complaint Case No. 959/2005(Ramjee Chaudhary Vs. Rampukari Devi) whereby and where under the learned lower Court took cognizance for an offence punishable under [STATUTE] . and summoned the petitioner to face trial thereon. Complainant/ Opposite Party No.2 had filed complaint petition disclosing therein that petitioner/accused happens to be his legally wedded wife but left his house to her own will. Even on repeated request, she declined to join and at the other hand fall in Patna High Court Cr.Misc. No.16548 of 2010 (3) dt.20-07-2012 2 / 5 2 intimate relationship with one Bhagrasan Sahni. So many time they were seen in objectionable condition on account of which the petitioner had filed petition for divorce, which is pending till today. Then it has been disclosed that on the alleged date of occurrence that means to say, on 20.3.2005 the petitioner/accused married with Bhagrasan Sahni. The marriage was solemnized with the help of pandit jee. Accused had accepted Bhagrasan Sahni, as her husband which was witnessed by the villagers. The learned C.J.M. transferred the complaint under section 192 of the Cr.P.C. for holding an enquiry under Section 202 Cr.P.C. in course of which S.A. of complainant was recorded along with the statement of witnesses and on the basis thereof by the order impugned the learned Court below had taken cognizance and issued summons to the petitioner. It has been submitted on behalf of the petitioner that from the statement of the witnesses itself, it is evident that said Bhagrasan Sahni happens to be the Bahnoi (Brother-in-law) of the petitioner and so his name has purposely been introduced. Then it has been submitted that the real fact is that complainant/ Opposite Party No.2 himself happens to be an ill reputed person and having persisting objections and interference at the end of the petitioner annoyed him and as a result of which the Matromonial Case No. 6/2002 was filed by the Opposite Party No.2 which was solely based upon the ground of desertion. Subsequently, as it appears to make out an additional ground this novel method has been adopted putting an allegation against Bahnoi of petitioner which was considered as safe zone whereupon an amendment was made at the behest of the Opposite Party No.2 adding the ground of adultery and that happens to be the reason behind that Opposite Patna High Court Cr.Misc. No.16548 of 2010 (3) dt.20-07-2012 3 / 5 3 Party No.2 has filed instant case to justify his action whatever he had taken before Matrimonial suit. Further submitted that in the aforesaid Matrimonial suit, the petitioner had prayed for grant of ad-interim maintenance pendente-lite along with cost of litigation, which was rejected by the learned lower Court against which Civil Revision No. 63/2004 was filed, which was allowed by order dated 5.8.2004 and just to undo the order of the High Court, the Opposite Party No. 2, who happens to be the Driver in Civil Court take this recourse by filing instant complaint case. So it is submitted that in the aforesaid background, the order impugned is fit to be setaside. At the other hand before the learned counsel for the opposite Party No.2 submitted that there is specific averments in the complaint petition that the petitioner had solemnized marriage with Bhagrasan Sahni during substance of first marriage with Opposite Party No.2 and on account thereof the learned lower court had rightly summoned the petitioner to face trial for an offence punishable under [STATUTE] . for the act of Bigamy. Learned Additional P.P. supported the finding of the learned lower Court. The offence of bigamy will attract only when there happens to be a valid marriage. Valid marriage is no where prescribed under the Hindu Marriage Act, save and except prescribing certain conditions thereon under section 5 of the Hindu Marriage Act, whereunder the two Hindus may solemnized marriage with the following conditions, being fulfilled:- i) neither party has a spouse living at the time of the marriage; Patna High Court Cr.Misc. No.16548 of 2010 (3) dt.20-07-2012 4 / 5 4 ii) at the time of the marriage, neither party- a) is incapable of giving a valid consent to it in consequence of unsoundness of mind; or b) Though capable of giving a valid consent, has been suffering from mental disorder of such a kind or to such an extent as to be unfit for marriage and the procreation of children; or c) Has been subjected to recurrent attacks of insanity; iii) the bridegroom has completed the age of( twenty- one years) and the bride, the age of ( eighteen years) at the time of the marriage; iv) the parties are not within the degrees of prohibited relationship, unless the custom or usage governing each of them permits of a marriage between the two; v) the parties are not sapinda of each other, unless the custom or usage governing each of them permits of a marriage between the two; How validity of marriage should be considered, that is prescribed under section 7 of the Hindu Marriage Act,whereunder Saptapadi happens to be the condition precedent. That means to say in absence of Saptapadi, there can not be a valid marriage. The

Applicable IPC Section: 494

Statute Text:
Section 494 of the Indian Penal Code. Marrying again during the life-time of a 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.