IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) PRESENT THE HON'BLE SRI JUSTICE P.S.NARAYANA CRL.P.1254 OF 2010. Date:19.03.2010 Between:- A.Srinivasa Rao ..Petitioner/Accused And The State of Andhra Pradesh, rep.by the Public Prosecutor, High Court Building, Hyderabad and another. .. Respondents ORDER:- Heard the learned counsel. 2. Smt K.Lalitha, the learned counsel representing the petitioner had taken this Court through the specific grounds raised in the Criminal Petition and would maintain that in the light of the facts and circumstances and the divorce already granted, no useful purpose would be served in permitting the prosecution to be further proceed with. The counsel also relied on a Judgment reported in MAMIDALA RAMESH V. STATE AND ANOTHER[1]. 3. Per contra, Sri K.Ananda Rao, learned counsel representing respondent No.2 would maintain that even if the dates are to be carefully examined, it is a clear case of playing fraud. The learned counsel also had taken this Court to the contents of the counter affidavit. On a careful examination of facts, there appears to be some controversy relating to the date of marriage as well. The evidence given by the wife has also been pointed out. 4. The learned counsel for petitioner contends that even prior to the interim suspension granted by this Court, the marriage was celebrated and on the contrary, Sri K.Ananda Rao contends otherwise that the second marriage was celebrated subsequent to the date of interim suspension granted by this Court. It is needless to say that predominantly, it is a question of fact. Be it as it may, the present Criminal Petition is filed to quash the proceedings in C.C.No.415 of 2009 on the file of XIII Additional Chief Metropolitan Magistrate at Nampally, Hyderabad District. 5. The brief facts of the case are as under: The second respondent herein had filed a private complaint against the petitioner stating that she was married to the petitioner on 23.10.1999 and out of wedlock, they were blessed with a boy on 25.01.2002. Thereafter, the petitioner had filed O.P.No.575 of 2003 for divorce before the Family Court, Visakhapatnam. Subsequently, O.P. was transferred to the Family Court, City Civil Court, Hyderabad by the order of this Court in Transfer C.M.P.No.65 of 2004 and renumbered as O.P.No.366 of 2004. The Family Court granted the decree of divorce in favour of the petitioner by order dated 05.05.2006. Against that order, she preferred appeal before this Court in F.C.A.No.68 of 2006 in F.C.A.M.P.No.124 of 2006. This Court granted suspension of the orders in O.P.No.366 of 2006. It is further stated that she lodged a complaint on 15.05.2007 seeking protection and other relief and the matter was referred to Mahila Dakshitha Samithi for their report. The second respondent attended the proceedings and the petitioner, without filing any counter for vacating interim orders, written a letter in the form of an affidavit along with the marriage certificate informing that he had married another girl on 20.06.2006. The family member of the petitioner had conspired together and committed the act. When there is an order in force by this Court by suspending the order of the Family Court, the petitioner, by marrying, has committed the offence of bigamy punishable under Section 494 of the Indian Penal Code. It is further stated that the Family Court, City Civil Court has granted a decree of divorce on 05.05.2006 in the O.P. filed by the petitioner. Against the orders of the Family Court, appeal lies to the High Court and the limitation is thirty days. Petitioner has waited till the appeal time is over and married on 20.06.2006. The second respondent’s appeal came up before this Court on 27.06.2006 and granted suspension of the orders of the Family Court in F.C.A.M.P.No.124 of 2006 in F.C.A.No.68 of 2006. Petitioner had waited for about forty five days from the date of order and married thereafter. Hence, Section 494 I.P.C. is not attracted. In the entire complaint, there is no averment as to when the interim orders were granted. Unless these things are stated, it cannot be said that Section 494 I.P.C. is attracted. It is further stated that the second respondent came up with the above complaint in the year 2008. Even as per her own complaint, she came to know about the fact that her husband had married another lady in the year 2007 itself. This itself shows that only with an intention to harass the petititoner, the present complaint is filed. The second respondent herein had filed O.P.No.674 of 2006 on the file of Family Court, City Civil Court, Hyderabad seeking enhancement of maintenance. In the cross examination, she clearly stated that the petitioner had married after the expiry of appeal time and before filing the appeal. It is further stated that even if all the allegations in the complaint are taken in its face value, they do not constitute an offence punishable under Section 494 I.P.C. The initiation of criminal proceedings against the petitioner is a pure abuse of process of law and it has to be interdicted at the threshold. 6. In the counter affidavit filed by the second respondent, it is stated that the marriage was solemnized on 23.10.1999 and the marriage was consummated and the couple was blessed with a male child on 25.01.2002. The filing of M.C.No.175 of 2003 was also referred to. Further, it is stated that the learned Judge of Family Court, Hyderabad was pleased to pass a decree for divorce in favour of the petitioner dissolving the marriage. In the said O.P., the second respondent/complainant filed copy application in the month of May and the copy was made ready and dispatched on 29.05.2006. Aggrieved with the said order, she filed F.C.A.No.68 of 2006 before this Court and this Court was pleased to suspend the operation of the said order by order dated 27.06.2006 in F.C.A.M.P.No.124 of 2006. Specific stand had been taken that even though an order of suspension had been granted, the petitioner got his second marriage with one Aruna Kumari. Several other facts already had been narrated in paras 4, 5 and 6 of the counter affidavit as well. 7. Strong reliance was placed on the decision of this Court in 2003 (1) ALD CRIMINAL 387 (AP). No doubt, in the said decision, it was held that where the accused married for second time after getting an exparte decree of divorce, he cannot be said to have committed offence of bigamy though exparte decree has been set aside. However, in the peculiar facts and circumstances, since specific stand had been taken that after interim suspension granted by this Court, the second marriage was celebrated, though the same is put into controversy by an assertion made otherwise by the learned counsel for the petitioner, this being predominantly, a question of fact, this Court is not inclined to interfere with under section 482 of Cr.P.C. However, the petitioner is at liberty to raise all these grounds at the appropriate stage. 8. Subject to the above observation, the Criminal Petition is dismissed. _​_____________ P.S.NARAYANA, J 19th March, 2010 AMD [1] 2003(1) ALD (Crl.) 387 (AP)