(1) IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CRIMINAL WRIT PETITION NO.371 OF 1996 1. Ramrao s/o Naroba Mahajan, Age 42 years, Occu. Agril. r/o Dhangar Galli, Pathri. 2. Rajeshri d/o Vithalrao Joshi, Aged 25 years, occu. household, r/o Pathri. 3. Chandraprabha w/o Vithalrao Joshi, Age: 52 years, Occu. Service, r/o Pathri. 4. Vithalrao s/o Madhavrao Joshi, Aged 56 years, Occu. Service, r/o Pathri. ...PETITIONERS VERSUS 1. Premilabai w/o Ramrao Mahajan, Age 37 years, Occu. Household, r/o. Manwat. 2. The State of Maharashtra (Through the Government Pleader, High Court of Bombay, Bench at Aurangabad). ...RESPONDENTS ... Ms.Gandhi, Adv., h/f Mr. P.V.Mandlik, Adv.,for the petitioners. Mr. S.S.Rathi, Adv., for respondent no.1. Mrs.B.R.Khekale, A.P.P., for respondent no.2. (2) CORAM : K.U.CHANDIWAL, J. DATE : 3/8/2009 *** P.C. 1. Heard both the Counsel extensively. 2. Issuance of process for an offence under Sections 494 and 109 of I.P.C., in RCC No.568/1992, by the learned Judicial Magistrate, First Class, Parbhani, is subject of challenge. 3. During the course of submissions, it is accepted by the original accused (petitioners herein) that the marriage of wife Pramilabai with Ramrao was solemnized on 20th April, 1973, and it was subsisting as on 5.9.1989, when the alleged second marriage was performed by Ramrao with Smt. Rajashri. 4. The Counsel submits that the second wife Rajashri or her parents were unaware of the subsisting marriage with Pramilabai. Consequently, no recourse could be taken to Section 109 or Section 494 of I.P.C. These aspects, contended by the Counsel, are repelled by the peculiar facts of the case which, more or less, involve the second wife Rajashri or her parents and, deliberate (3) omission to desist from performing second marriage, attracting infraction of Section 494 of I.P.C. 5. During the course of submissions, it was pointed that Rajashri was a tenant in the premises owned by Ramrao where he was staying with Pramilabai, as husband and wife. It could not be a representation to the second wife that the relations have been severed. She was conscious of their cohabitation and, in this scenario, the purpose of marriage by Ramrao with Rajashri and, attended by her parents, will definitely prima facie attract Section 109 of IPC. 6. In the above facts, the contention of the Counsel that there should have been Saptapadi, as the husband Ramrao and Pramilabai are Hindus and there is no such evidence adduced. This is misplaced as the marriage certificate signed by the husband with Rajashri creates violence to what the Counsel addressed. There was no specific proof required of performance of Saptapadi or other rites. The marriage certificate, prima facie, has a presumptive value which aspect also cannot be put to shelves. (4) 7. The contention that the woman, who marries a man, whose wife is living, cannot be prosecuted under Section 494 of IPC is not the controversy. The process against the second wife and parents is for an offence under Section 109 of IPC, facilitating the second marriage, which is an offence under Section 494 of IPC. In this situation, the issuance of process by the learned Judicial Magistrate, First Class, cannot be said to be erroneous. The observations are prima facie in nature. The writ petition, being sans merit, is dismissed. Rule discharged. ( K.U.CHANDIWAL) JUDGE ... agp/371-96crwp