1 S.B.CRIMINAL REVISION PETITION NO.424/2006 (Mukesh Vs. State & Ors.) Date of order : 5.9.2007 HON'BLE MR. JUSTICE GOPAL KRISHAN VYAS Mr. Sandeep Mehta, for the petitioner. Mr. Vishnu Kachwaha, Public Prosecutor. Mr. N.S. Rajpurohit, for non-petitioners. By way of filing the present revision petition, the petitioner is challenging the the order dated 22.4.2006 passed by Addl. Chief Judicial Magistrate No.2, Jodhpur in Criminal Original Case No.139/2005 whereby the final report submitted by the Police in connection with FIR No.299/2005 P.S. Pratap Nagar, District Jodhpur was accepted and the protest petition filed by the petitioner was rejected. According to the facts of the case, petitioner and non-petitioner No.9 Sumitra Devi got married on 30.8.1999 as per Hindu law. They lived as husband and wife for two years. Subsequently on 22.8.2002, non-petitioner No.9 Sumitra Devi went with her brother to Jodhpur at her parental house on the occasion of 'rakhi' and she did not return. According to the facts of the case, at the time of leaving the house of petitioner, she took some ornaments with her which were belonging to her mother-in-law. After sometime, when she did not return, the petitioner made all his efforts to bring his wife back but all his 2 efforts went in vain. The petitioner alleged in his complaint that petitioner's family was ordered that if they wanted that Smt. Sumitra should be sent to their house, then they have to pay Rs.50,000/- but the petitioner refused to pay the said amount and later on the demand was enhanced to Rs.1,00,000/-. It was also alleged by the petitioner that on one hand his in-laws refused to send her wife back and on the other hand they got married his wife with one Dharmendra Kumar – non-petitioner No.8 on 27.5.2005 in Arya Samaj temple at Pali. They also obtained marriage certificate by registering their marriage under Section 8 of Hindu Marriage Act by way of moving an application before the District Collector Pali. Upon this fact of second marriage of Sumitra Devi, a complaint was lodged by the petitioner under Section 156(3) Cr.P.C. and the same was registered to the Police for investigation. After investigation, police filed final report stating that offence under Section 494 I.P.C. is made out but offence under Sections 420, 406 and 120-B I.P.C. is not made out. When final report was given by the police before the concerned Magistrate, the petitioner submitted a protest petition supported by his own 3 statement and the statement of other persons under Section 200 and 202 Cr.P.C. However, the learned Addl. Chief Judicial Magistrate No.2, Jodhpur rejected the protest petition and proceeded to accept final report and passed the impugned order dated 22.4.2006. It is contended by the learned counsel for the petitioner that as per the evidence on record, it is not disputed by the non-petitioners that marriage of Sumitra Devi – non-petitioner No.9 with the petitioner was solemnized. Moreover, the learned trial Court gave its finding that in the affidavit filed by Sumitra Devi for the purpose of obtaining marriage registration certificate with Dharmendra Kumar – non-petitioner No.8, her age was shown as 19 years. Meaning thereby, upon presumption, the learned Magistrate gave its finding that obviously marriage of the petitioner was solemnized in the year 1999, then, at the time of marriage, she was 14 to 15 years of age, therefore, upon this fact, it is held by learned Magistrate that on 30.8.1999 at the time of marriage of the petitioner with Sumitra Devi, which was child marriage and according to the evidence 'muklava' was also not taken place, therefore, according to learned Magistrate, it cannot be treated to be a marriage and according to the facts, the marriage of petitioner and Sumitra Devi was void ab initio. But the learned counsel for the petitioner argued that this finding is totally erroneous in view of Section 11 of Hindu 4 Marriage Act. Section 11 of Hindu Marriage Act, 1955 reads as follows : “11. Void marriages.- Any marriage solemnized after the commencement of this Act shall be null and void and may, on a petition presented by either party thereto against the order party be so declared by a decree of nullity if it contrivances any one of the conditions specified in clauses (i), (iv) and (v) of Section 5.” It is further contended that if at all the marriage was child marriage then also it was to be declared void by a competent court and thereafter, second marriage was to be solemnized by non-petitioner No.9 but admittedly without getting any declaration from the competent court, the marriage as void marriage, second marriage was solemnized, which is offence under Section 494 I.P.C. But the learned Magistrate has committed an error while not considering this aspect of the matter. Therefore, the order impugned passed by learned Magistrate is erroneous and deserves to be quashed and set aside. On the other hand, learned counsel for the non-petitioners submitted that alleged marriage of non-petitioner No.9 with the petitioner cannot be defined as marriage and finding recorded by learned Magistrate does not require any interference. 5 After hearing both the parties, in my opinion, the learned Magistrate has arrived at with the finding that though marriage of the petitioner with Sumitra Devi took place on 30.8.1999 but according to the finding that marriage was child marriage and the fact that this marriage was void, therefore, there is no question of taking cognizance against the non-petitioners because the petitioner has not established relationship of the petitioner and non-petitioner No.9 as husband and wife, therefore, in absence of evidence of marriage, there is no force in the protest petition. In my opinion, this order deserves to be set aside because the learned Magistrate has passed this order without considering the provisions of Section 5, 11 and 12 of Hindu Marriage Act, 1955. Learned Magistrate was under obligation to give finding with regard to marriage in accordance with the provisions of Hindu Marriage Act, if he has arrived at with the finding that marriage was void marriage, then, he was to consider the provisions of Hindu Marriage Act. Obviously, upon perusal of impugned order, there is no discussion of Hindu Marriage Act in which on the basis of presumption, the protest petition has been rejected. According to the evidence on record, it is not disputed that the marriage of petitioner with non- petitioner No.9 was solemnized in the year 1999. Moreover, a plea is taken that no 'muklava' took place after the marriage. 6 I have perused the entire evidence on record. Upon evidence, the petitioner has established that his marriage with non-petitioner No.9 was solemnized on 30.8.1999, therefore, the learned trial Court was to first consider whether this marriage is void or voidable but there is no discussion in the impugned order with regard to dissolution of marriage. It is also admitted case that there is no declaration of any court with regard to declaring the marriage of the petitioner with non-petitioner No.9 as void or voidable. In these circumstances, while quashing the impugned order dated 22.4.2006, the case is remitted to trial Court with a direction to first decide whether the marriage was void or voidable then pass a fresh order in accordance with law. Accordingly, the revision petition is allowed. (GOPAL KRISHAN VYAS), J . arun