Judge velmurugan order –Cruelty and bigamy – Marriage not proved – Witnesses stated that parties are married – Cruelty was made.

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Mrs. A. Jaya v. State, (Madras) : Law Finder Doc Id # 1732624
MADRAS HIGH COURT
Before:- Mr. P. Velmurugan, J.

Crl.A.No.687 of 2018 and Crl.Rc.No. 1336 of 2017. D/d. 20.03.2019.

Mrs. A. Jaya and other – Appellants

Versus

State rep. By the The Inspector of Police, All Women Police Station, Melmaruvathur, Kancheepuram District. and other Respondents

Crl.A.No.687 of 2018

For the Appellant :- Mr. L. Baskaran, Advocate.

For the Respondent No. 1 :- Mr. R. Ravichandran Government Advocate (Crl.Side).

For the Respondent No. 2 :- Mr. P.M. Duraisamy, Advocate.

Crl.R.C.No.1336 of 2017

For the Appellant :- Mr. P.M. Duraisamy, Advocate.

For the Respondent No.1 :- Mr. R. Ravichandran Government Advocate (Crl.Side).

For the Respondent No.2 :- Mr. L. Baskaran, Advocate.

IMPORTANT

Cruelty and bigamy – Marriage not proved – Witnesses stated that parties are married – Cruelty was made.

Indian Penal Code, 1860 Sections 494 and 498A Appeal against conviction – Cruelty – Absence of specific proof of marriage between parties – Offence under Section 494 not attracted – Even though the marriage was not proved, but the evidence shows that they are living together and some of the witnesses stated that they are married and as such, the cruelty was made – Though prosecution failed to prove second marriage performed by the revision petitioner after getting the decree from the civil Court and in order to escape from the clutches of law revision petitioner had threatened appellant – Cruelty cannot be termed in a single word – Petitioner has caused cruelty to the appellant by his conduct – Conviction set aside.

[Paras 10 and 11]

Cases Referred :

Tamil Selvi v. Arumugam, 1990 (2) L.W 133.

COMMON JUDGMENT
Mr. P. Velmurugan, J. – These criminal appeal and revision have been filed against the judgment dated 21.09.2017 made in C.A.No.2 of 2014 by the learned Principal District and Sessions Court, Chengalpattu.

2. The appellant in Criminal Appeal is the second respondent in the Criminal Revision. Based on the complaint given by the appellant herien against the second respondent/revision petitioner, the first respondent conducted investigation and laid the charge sheet before the learned Judicial Magistrate, Madurantakam in C.C.No.64 of 2014 for the offence under Sections 494, 498 A and 506 (ii) of IPC and the learned Magistrate after trial convicted the second respondent herein for the offence under Sections 494 and 498 (A) of IPC and acquitted him from the charge under Section 506 (ii) of IPC. Against the said judgment passed by the learned Judicial Magistrate, Madurantakan, the second respondent herein filed an appeal before the learned Principal Sessions Judge, Kancheepuram in Crl.A.No.2 of 2014. The learned Sessions Judge after hearing both sides, partly allowed the Appeal by setting aside the conviction for the offence under Section 498 (A) IPC and by confirming the conviction for the offence under Section 494 IPC.

3. Aggrieved by the above said judgment dated 21.09.2017, the appellant has preferred the present appeal before this Court. The second respondent herein has filed the Criminal Revision case against the judgment of conviction passed by the leaned Sessions Judge, Kanchipuram for the offence under Section 494 of IPC.

4. The case of the prosecution is that there was an engagement between the Appellant and the revision petitioner in the year 1987. After the said engagement and before marriage, the father of the appellant died. At that time, the appellant and the revision petitioner married by exchanging ring and lived together as Husband and Wife. In the year 1989, she got convinced and the revision petitioner pressurized her to abort the child. In spite of that, she gave birth to a child and thereafter she tried to live along with the revision petitioner, but he refused to take her. Therefore, she filed a suit in O.S.No.99 of 1990 to declare herself as the wife of the revision petitioner and also for an injunction restraining him from marrying one Gomathi. After trial, the suit was decreed declaring her as the wife of the revision petitioner and restrained the revision petitioner to marry the other woman. Hence, the revision petitioner preferred an appeal before the Sub Court, Madurantakam and he subsequently married the said Gomathi. Therefore, the appellant lodged a complaint against the revision petitioner before the first respondent for the offence under Section 498A, 494 and 506 (ii) IPC. The learned Magistrate after recording the evidences, convicted the revision petitioner under both the Sections 498 A and 494 IPC. However, the learned Sessions Judge acquitted him from the offence under Section 498 (A) IPC but confirmed the conviction under Section 494 IPC as the Appellate Court found that the entire evidence would show that there was no case made out against the revision petitioner as regards cruelty.

5. Before the trial Court, in order to prove the case of the prosecution, P.W.1 to P.W.9 were examined Ex.P1 to Ex.P8 were marked. On the side of the defence, D.W.1 to D.W.3 were examined and no document was produced.

6. The learned Judicial Magistrate, Madurantakam, found the accused guilty of the offence punishable under Section 494 IPC and convicted and sentenced him to undergo rigorous imprisonment for a period of two years with find of Rs.5,000/- in default, to undergo simple imprisonment for a further period of 3 months and also found him guilty of the offence punishable under Section 498 (A) IPC and convicted and sentenced him to undergo rigorous imprisonment for a period of two years with fine of Rs.5000/- in default to undergo simple imprisonment for a further period of 3 months.

7. The learned Counsel for the revision petitioner, who is the second respondent in the appeal would submit that the first marriage itself is not proved and though the appellant was declared as the wife of the second respondent by virtue of decree in O.S.No.99 of 1990, which was also confirmed on appeal, he has filed a second appeal before this Court and the same is pending. The wife lodged a complaint against the revision petitioner that he married one Gomathi, therefore he committed the offence under Section 494 of IPC. The learned Sessions Judge found that eventhough the marriage was not proved, but the evidence shows that they are living together and some of the witnesses stated that they are married and as such, the cruelty was made. Therefore, the trial judge found him guilty of the offence under Section 498 A of IPC. But the learned Sessions Judge has set aside the order passed by the trial judge for the offence under Section 498 A of IPC. He further submitted that proof of marriage is not established. Therefore, there are no materials available to attract even the offence under Section 494 IPC and also there is no proof as against the revision petitioner as regards cruelty.

8. Per contra, the learned counsel appearing for the appellant submitted that the civil Court has already declared the appellant as the wife of the revision petitioner. The revision petitioner married one Gomathi in the year 2001 and the said Gomathi also gave birth to a child and the birth certificate of her child shows that the revision petitioner is the father of the child through the second wife. Therefore the marriage was proved and he further stated that some of the witnesses stated that they are married and living together and therefore there is no modification of the conviction required for the offence under Section 494 IPC. However, since she has got a valid decree from the competent Civil Court, he had threatened her and he had also married another woman and therefore, according to the learned counsel, cruelty was made out. The learned Sessions Judge failed to consider this aspect and acquitted him from the offence under Section 498 A IPC which warrants interference. Further he also relied upon judgment of this Court reported in 1990 (2) L.W 133 in the case of Tamil Selvi v. Arumugam.

9. Heard, the learned counsel for the petitioner in Criminal Revision and the second respondent in the Criminal Appeal and the learned counsel for the appellant in the Criminal Appeal and the second respondent in the Criminal Revision and perused the materials available on records.

10. It is seen from the materials on record that the appellant and the revision petitioner after exchanging ring, lived together as husband and wife. In the year 1989 the appellant got conceived. The revision petitioner pressurized the appellant to abort the baby. She got a decree, declaring herself as the wife of the revision petitioner, against which the revision petitioner has filed a second appeal before this Court. The revision petitioner married another woman in the year 2001 and they were living in the same village as husband and wife and they also have one child. Hence, the appellant filed the complaint against revision petitioner and one Gomathi. There is no documentary evidence to show that the second marriage was performed between the revision petitioner and the said Gomathi and in the birth certificate (Ex.P.8) of the second wife’s child, it is not stated that the child was born through the revision petitioner and absolutely, there is no document which shows that the marriage was performed between the revision petitioner and the said Gomathi. Therefore, under these circumstances, in the absence of any specific proof of marriage between the revision petitioner and the said Gomathi, the offence under Section 494 IPC would not get attracted. Therefore, the judgment passed by the learned Principal District and Sessions Judge, Chengalpattu in C.A.No.2 of 2014 is partly set aside in so far as the conviction for the offence under Section 494 IPC is concerned. The criminal revision is allowed.

11. This Court is of the view that the authority cited by the learned counsel appearing for the revision petitioner/second respondent is not applicable to the facts of the present case in hands. As far as the offence under Section 498 A is concerned, the appellant got a decree from competent civil Court that she is the wife of the revision petitioner and though the revision petitioner has filed a second appeal before this Court but there is no stay granted. Though the prosecution has failed to prove the second marriage performed by the revision petitioner, after getting the decree from the civil Court and in order to escape from the clutches of law, the revision petitioner had threatened this appellant and subsequent to 1990 to till date, the revision petitioner is happily living with another woman and gave birth to a child through her and also recorded that he is the father of the child. The cruelty cannot be termed in a single word. Considering the facts and circumstances of this case, the revision petitioner has caused cruelty to the appellant by his conduct.

12. In the result, the Criminal Appeal is allowed by setting aside the judgment dated 21.09.2017 made in C.A.No.2 of 2014 passed by the learned Principal District and Sessions Judge, Chengalpattu and confirming the judgment of the trial Court dated 07.02.2014 made in C.C.No.64 of 2004 passed by the Judicial Magistrate, Madurantakam only with regard to the offence under Section 498 A IPC.

13. In the result, the Criminal Revision is allowed by setting aside the judgment dated 21.09.2017 made in C.A.No.2 of 2014 passed by the learned Principal District and Sessions Judge, Chengalpattu.

Criminal appeal and revision allowed.

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