Criminal Writ Petition No. 314 of 2009 1 In the High Court of Punjab and Haryana, at Chandigarh. Criminal Writ Petition No. 314 of 2009 Date of Decision: 26.3.2009 Harbans Kaur and Another …Petitioners Versus State of Punjab and Others …Respondents CORAM: HON’BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA. Present: Kumar Vishav Aggarwal, Advocate for the petitioners. Mr.Anter Singh Brar, Deputy Advocate General, Punjab, for respondents No.1 & 2. Mr. Ashutosh Gupta, Advocate for respondent No.3. Mr. Ashwani Gaur, Advocate for respondent No.4. Kanwaljit Singh Ahluwalia, J. (Oral) Kulwant Kaur and Sunveer Kaur had filed Criminal Misc. No. M-3773 of 2009 in this Court. The following order was passed by this Court on 10.2.2009:- Issue notice of motion to learned Advocate General, Punjab. On the asking of the Court Mr. Mehardeep Singh, learned Advocate General, Punjab, accepts notice on behalf of the State. Criminal Writ Petition No. 314 of 2009 2 Petitioners are stated to be adult and have attained majority. It is stated that they are competent to solemnize their marriage. Petitioners have grievance that their marriage is not being accepted by their parents and relatives. They apprehend danger to their lives. Senior Superintendent of Police, Patiala, is directed to give adequate security and protection to the newly married couple. Petition is disposed off”. This petition has been filed by Harbans Kaur and Rajinder Singh, parents of Sunveer Kaur under Article 226 of the Constitution of India that Sunveer Kaur has been illegally detained by Kulwant Kumar, respondent No.3. Sunveer Kaur is present in the Court. Her statement has been recorded separately. She has stated that she intends to stay with her husband Kulwant Kumar. Sunita Rani, respondent No.4, first wife of respondent No.3 Kulwant Kumar is also present in the Court. It has been stated that the marriage of Sunveer Kaur with Kulwant Kumar, respondent No.3 is void. Two adult persons can stay together even without effecting marriage. If there is threat to their life and they apprehend danger, this Court is bound to provide them security. The submissions made by counsel for the petitioners further justifie that Sunveer Kaur should be protected so that no harassment is caused to her life. Criminal Writ Petition No. 314 of 2009 3 If second marriage is performed by anybody, law take care of it. Offence of second marriage (bigamy) is a non-cognizable offence. Section 198 Cr.P.C. read as under:- “198. Prosecution for offence against marriage. (1) No court shall take cognizance of all offence punishable under Chapter XX of the Indian Penal Code (45 of 1860) except upon a complaint made by some person aggrieved by the offence: Provided that- (a) Where such person is under the age of eighteen years, or is an idiot or a lunatic, or is from sickness or infirmity unable to make a complaint, or is a woman who, according to the local customs and manners, ought not to be compelled to appear in public, some other person may, with the leave of the court, make a complaint on his or her behalf, (b) Where such person is the husband and he is serving in any of the Armed Forces of the Union under conditions which are certified by his Commanding Officer as precluding him from obtaining leave of absence to enable him to make a complaint in person, some other person Criminal Writ Petition No. 314 of 2009 4 authorised by the husband in accordance with the provisions of sub-section (4) may make a complaint on his behalf, (c) Where the person aggrieved by an offence punishable under section 494 or section 495] of the Indian Penal Code (45 of 1860) is the wife, complaint may be made on her behalf by her father, mother, brother, sister, son or daughter or by her father's or mother's, brother or sister, or, with the leave of the court, by any other person related to her by blood, marriage or adoption]. (2) For the purpose of sub-section (1), no person other than the husband of the woman, shall be deemed to be aggrieved by any offence punishable under section 497 or section 498 of the said Code: Provided that in the absence of the husband, some person who had care of the woman on his behalf at the time when such offence was committed may, with the leave of the court, make a complaint on his behalf. (3) When in any case falling under clause (a) of the proviso to sub-section (1), the complaint is sought to be made on behalf of a person under the Criminal Writ Petition No. 314 of 2009 5 age of eighteen years or of a lunatic by a person who has not been appointed or declared by a competent authority to be the guardian of the person of the minor or lunatic, and the court is satisfied that there is a guardian so appointed or declared, the court shall, before granting the application for leave, cause notice to be given to such guardian and give him a reasonable opportunity of being heard. (4) The authorization referred to in clause (b) of the proviso to sub-section (1), shall be in writing, shall be signed or otherwise attested by the husband, shall contain a statement to the effect that he has been informed of the allegations upon which the complaint is to be founded, shall be countersigned by his Commanding Officer, and shall be accompanied by a certificate signed by that Officer to the effect that leave of absence for the purpose of making a complaint in person cannot for the time being be granted to the husband. (5) Any document purporting to be such an authorization and complying with the provisions of sub-section (4), and any document purporting to be a certificate required by that sub-section shall, unless the contrary is proved, be presumed to be genuine and shall be received in evidence. (6) No court shall take cognizance of an Criminal Writ Petition No. 314 of 2009 6 offence under section 376 of the Indian Penal Code (45 of 1860), where such offence consists of sexual inter-course by a man with his own wife, the wife being under fifteen years of age, if more than one year has elapsed from the date of the commission of the offence. (7) The provisions of this section apply to the abetment of, or attempt to commit an offence as they apply to the offence. Section 198 Cr.P.C. provide as to who can prosecute in case of second marriage. The protection given to Sunveer Kaur and Kulwant Kumar is only to save their life and liberty. If any party initiate any proceedings for any offence made out, law will take its own course. With the observations made above, the present petition is disposed off. (Kanwaljit Singh Ahluwalia) Judge March 26, 2009 “DK”