-1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH *** CRM NO.M-10841 OF 2010 (O&M) DATE OF DECISION 03.11.2011 Jarnail Kaur ...Petitioner Versus State of Punjab and another ...Respondents CORAM: HON'BLE MR. JUSTICE AUGUSTINE GEORGE MASIH. Present: Mr. Gurmit Singh, Advocate, for the petitioner. Mr. Vishal Munjal, Addl. Advocate General, Punjab. Mr. Anmol Partap Singh Mann, Advocate, for the respondent. AUGUSTINE GEORGE MASIH, J. (Oral) CRM No.59099 of 2011 Prayer in this application is for permission to place on record accompanied reply on behalf of respondent No.2. Application allowed. Written statement is taken on record. Application stands disposed of. CRM NO.M-10841 OF 2010 This petition under Section 482 of the Code of Criminal Procedure has been preferred by the petitioner for quashing of Criminal Complaint Case No.204/08/09 dated 13.06.2008 under Sections 494, 109, 498-A, 420, 466, 468, 471 of the Indian Penal Code (hereinafter referred to as 'IPC') (Annexure P-1) and the summoning order under Sections 494/109 IPC dated 26.05.2009 (Annexure P-11) and other -2- subsequent proceedings arising thereof. It is the contention of the counsel for the petitioner that on the day when the marriage of the petitioner-Jarnail Kaur with Harjinder Singh was performed i.e. 25.04.2004 there was a valid decree of divorce in favour of Harjinder Singh and against complainant-Balbir Kaur. Since the decree was in force on the day when the marriage was performed between the petitioner-Jarnail Kaur and Harjinder Singh, offence under Section 494 IPC is not made out. In support of this, counsel for the petitioner has relied upon the judgment of the Supreme Court in the case of Gopal Divedi vs. Prabha Divedi, 2003(2) R.C.R. (Criminal) 712, as also the judgment of this Court in the case of Bir Bahadur Singh and others vs. State of Punjab and another, 2007(1) R.C.R. (Criminal) 786. His further contention is that as far as the offence under Section 109 IPC is concerned, that is also not made out from the bare reading of the complaint as there was no abetment on behalf of the petitioner. On the other hand counsel for respondent No.2 submits that ex parte decree of divorce dated 23.12.2002 was obtained by Harjinder Singh by committing a fraud as in the petition for divorce he had wrongly given the address of the complainant-Balbir Kaur and thereafter obtained a wrong report of service upon her. Even the petitioner was knowing about the divorce petition filed and the decree obtained by Harjinder Singh and when this ex parte decree was shown to the petitioner before marriage, she should and would have verified this fact before proceeding to marry Harjinder Singh. His further contention is that she not only connived but was hand in glove with Harjinder Singh accused and therefore she has been rightly summoned by the trial Court. I have heard learned counsel for the parties and gone through the record of the case. -3- The brief facts of the case are that marriage between Balbir Kaur-complainant and Harjinder Singh took place on 14.12.1997. No child was borne out of the wedlock. As per the complainant-Balbir Kaur, Harjinder Singh continued to reside with her till four days prior to his second marriage. The second marriage between Harjinder Singh and the petitioner Jarnail Kaur took place on 25.04.2004 but prior thereto Harjinder Singh filed a petition for divorce on 16.08.2002. An ex parte decree of divorce was granted to him on 23.12.2002 against Balbir Kaur. An advertisement was inserted by the parents of the petitioner-Jarnail Kaur for a matrimonial alliance for her on 07.04.2004 to which Harjinder Singh responded. He showed the ex parte decree of divorce to the petitioner-Jarnail Kaur and her family members and on the basis of the said ex parte decree of divorce and believing the same, marriage between the petitioner-Jarnail Kaur and Harjinder Singh was fixed for 25.04.2004 and was performed on that day. Application for setting aside the ex parte decree dated 23.12.2002 was filed by Balbir Kaur complainant/respondent No.2 on 07.06.2004 and the ex parte decree of divorce was, as a matter of fact, set aside on 23.12.2005. Thereafter, the trial took place and the divorce petition was dismissed by the Court on 08.11.2007. Against the said dismissal order of the divorce petition, Harjinder Singh filed an appeal in this Court, which was admitted on 27.05.2008, which is pending consideration. The present complaint has been filed by the complainant-Balbir Kaur on 13.06.2008 in which Harjinder Singh stands summoned. The petitioner has also been summoned under Sections 494/109 IPC vide order dated 26.05.2009. Thus, at this stage, the present petition has been filed for quashing of the criminal complaint as well as the summoning order. Section 494 IPC, which is main offence allegedly committed -4- by the petitioner, requires the knowledge on the part of the person with whom the second marriage is being performed of the fact of subsistence of the first marriage of the person who is marrying for the second time. In the present case the facts have revealed as stated above, that ex parte decree of divorce was obtained by Harjinder Singh on 23.12.2002. The marriage between Harjinder Singh and the petitioner-Jarnail Kaur was performed on 25.04.2004. On the day of second marriage, ex parte decree was in force and which was a valid decree on the said day. Even application for setting aside the ex parte decree was filed by the complainant-Balbir Kaur on 07.06.2004, which is after the date of performance of the second marriage. Ex parte decree was actually set aside on 23.12.2005 and therefore, on the day when the second marriage was performed there was a valid decree of divorce in subsistence. If that be so, in the light of the judgment of the Supreme Court in the case of Gopal Divedi (supra), wherein it has been held that even if an ex parte decree has been obtained and till it is set aside the said decree would be subsisting and if on the day when the second marriage was performed the first marriage was not subsisting in view of the ex parte decree which continued in force on the said day, offence under Section 494 IPC cannot be said to have been committed. Although there are allegations against the husband specifically that ex parte decree was obtained by him by playing a fraud on the respondent-Balbir Kaur by giving a wrong address in the petition but there is no specific allegation with regard to connivance of the petitioner-Jarnail Kaur with Harinder Singh in obtaining the ex parte decree. This further is fortified from the fact that the ex parte decree was obtained on 23.12.2002 and the advertisement was got published by the parents of the petitioner-Jarnail Kaur on 07.04.2004 which is more than -5- one year and three months after the passing of the decree of divorce. Had there been any connivance between the petitioner-Jarnail Kaur and Harinder Singh, they would not have waited for more than one year for performing the second marriage, which ultimately took place on 25.04.2004. Offence under Section 109 also is not made out in view of the fact that the substantive offence has not been found to be made out against the petitioner. In view of the above, the present petition is allowed. Criminal Complaint Case No.204/08/09 dated 13.06.2008 under Sections 494, 109, 498-A, 420, 466, 468, 471 IPC (Annexure P-1) and the summoning order under Sections 494/109 IPC dated 26.05.2009 (Annexure P-11) passed by Chief Judicial Magistrate, Hoshiarpur are quashed qua the petitioner only. 03.11.2011 (AUGUSTINE GEORGE MASIH) adhikari JUDGE