IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD THURSDAY, THE FIFTH DAY OF AUGUST TWO THOUSAND AND TEN PRESENT THE HON'BLE SRI JUSTICE K.C. BHANU CRIMINAL PETITION No.2579 OF 2008 Between: G. Ramgopal Rao .....PETITIONER AND G. Suguna Devi and others ....RESPONDENT The Court made the following: THE HON’BLE SRI JUSTICE K.C. BHANU CRIMINAL PETITION No.2579 OF 2008 ORDER: This Criminal Petition, under Section 482 of the Code of Criminal Procedure, 1973, (for short, “Cr.P.C.”) is filed to quash the proceedings against the petitioner in C.C.No.31 of 2007 on the file of IV Additional Judicial Magistrate of First Class, Warangal. 2. The allegations in the complaint would go to show that the marriage of the petitioner with respondent No.1 was performed in accordance with law on 02.06.1957. Four or five years thereafter, unable to bear the harassment made by the petitioner, respondent No.1 left the company of the petitioner and stayed at her sister's house. Respondent No.1 filed O.S.No.2 of 2006 on the file of the Family Court, Warangal, for grant of maintenance and other reliefs. The petitioner herein filed a written statement in the said O.S. stating that he gave divorce to respondent No.1; that he married one G. Rajyalaxmi and that respondent No.1 came to know of the alleged second marriage of the petitioner only after filing the written statement by him in the O.S. Hence, respondent No.1 lodged the complaint. 3. Learned counsel appearing for the petitioner vehemently contended that the allegations in the complaint do not disclose prima facie offence of bigamy; that after giving divorce to respondent No.1, the petitioner married one G. Rajyalaxmi in the year 1970; that with a mala fide intention the present allegations are levelled against the petitioner; that there is no prima facie material to show that the petitioner committed an offence punishable under Section 494 I.P.C. and hence, he prays to quash the proceedings. 4. On the other hand, learned counsel for respondent No.1 contended that the allegations in the complaint and sworn statement would go to show that the marriage of the petitioner with respondent No.1 was subsisting; that again in the year 1970, the petitioner married another woman by name G. Rajyalaxmi; that the said fact came to be known to respondent No.1 when the petitioner filed his written statement in O.S.No.2 of 2006; that therefore, there is prima facie case made out against the petitioner and hence, he prays to dismiss the Criminal Petition. 5. Inherent powers under Section 482 Cr.P.C. can be invoked when there is an abuse of process of Court or to secure ends of justice or to give effect to the orders passed under the Code. If the allegations in the complaint made out a prima facie case for the offence alleged, then the question of quashing the complaint does not arise. 6. At this stage, it is not desirable to test whether the allegations made in the complaint are true or correct. Under Section 494 I.P.C., 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. 7. The allegations in the complaint would go to show that the marriage of the petitioner with respondent No.1 was performed on 02.06.1957. That marriage was not in dispute. Again the petitioner married one G. Rajyalaxmi in the year 1970. That fact came to be known to respondent No.1 when the petitioner filed written statement in O.S.No.2 of 2006 on the file of the Family Court, Warangal, wherein it is stated that he gave divorce to respondent No.1 in writing on 11.11.1967 by paying Rs.50,000/- towards permanent alimony and that there is no relationship of wife and husband between the petitioner and respondent No.1. 8. Admittedly, marriage of the petitioner with respondent No.1 was not dissolved in accordance with the provisions of the Hindu Marriage Act, 1955, (for short, "the Act") in view of the fact that the parties are governed by the Act. Whether the alleged divorce given by the petitioner to respondent No.1 in the year 1967 is valid or not, cannot be decided here. That is a matter to be resolved by the trial Court. However, learned senior counsel for the petitioner placed reliance on a decision of the Honourable Supreme Court in M. Saravana Porselvi v. A.R. Chandrasekar[1], wherein it is held thus: "The customary divorce may be legal or illegal. The fact that such an agreement had been entered into or the appellant had received a sum of Rs.25,000/- by way of permanent alimony, however, stands admitted. The document is a registered one. Appellant being in the legal profession must be held to be aware of the legal implication thereof. If the contents of the said agreement are taken to be correct, indisputably the parties had been living separately for more than ten years. How then a case under Section 498A of the Indian Penal Code can be said to have made out and that too at such a distant point of time is the question, particularly in view of the bar of limitation as contained in Section 468 of the Code of Criminal Procedure. Even otherwise it is unbelievable that the appellant was really harassed by her husband or her in-laws." There cannot be any dispute that when a custom is pleaded with regard to severance of husband and wife relationship, it has to be proved and established. Therefore, whether any custom is existing with regard to the divorce in the community of the petitioner and respondent No.1 is a matter of fact to be adjudicated in accordance with law. Therefore, the above decision has no application to the case on hand. 9. The learned senior counsel also relied upon a decision of this Court in Eicher Tractor Ltd. v. Harihar Singh[2], wherein it referred to clause 7 in State of Haryana v. Bhajan Lal (1992 Supp (1) SCC 335), wherein it was held thus: "Where a criminal proceeding is manifestly attended with mala fides and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge." On the basis of clause 7, the learned senior counsel vehemently contended that the present complaint is maliciously instituted with a mala fide intention. 10. If the allegations of respondent No.1 in the complaint and sworn statement are to be taken as correct at this stage, it reveals that the marriage of the petitioner with respondent No.1 was performed on 02.06.1957 and that marriage is subsisting even as on today. Respondent No.1 came to know the alleged second marriage of the petitioner only when the petitioner filed written statement in O.S.No.2 of 2006 on the file of the Family Court, Warangal. Therefore, when the marriage between the petitioner and respondent No.1 is subsisting, the question of marrying another woman does not arise. It is no doubt true that the admission of the petitioner cannot be taken as a basis to convict the accused, but at the same time such an admission can be taken to establish a prima facie case for the offence under Section 494 I.P.C. Therefore, the contention of the learned senior counsel appearing for the petitioner that the case is maliciously instituted cannot be accepted at this stage. A s prima facie case is made out against the petitioner for the offence punishable under Section 494 I.P.C., the question of quashing the proceedings against the petitioner does not arise. There are no merits in the present petition. 11. Accordingly, the Criminal Petition is dismissed. _______________ K.C. BHANU, J August 05, 2010 MD THE HON’BLE SRI JUSTICE K.C. BHANU CRIMINAL PETITION No.2579 OF 2008 August 05, 2010 [1] AIR 2008 SC 2462 [2] 2009 (1) ALD (Crl.) 200 (SC)