Supreme Court Explains Requirements to Attract Section 494 IPC (Bigamy)

The Supreme Court on Wednesday explained the requirements to attach Section 494 IPC (Bigamy).

The bench of Justices B.R. Gavai and Sandeep Mehta was dealing with the appeal challenging the judgment and order passed by the Kerala High Court whereby, the petition preferred by the appellants seeking quashing of the proceedings of Criminal Case on the file of JMFC for the offences punishable under Section 494 read with Section 34 of the IPC was rejected. 

In this case, the complainant Mr. Reynar Lopez (respondent No. 2), married Ms. Lumina (A-1) in a Christian ceremony at St. Theresa’s Lisieux Church in Vellayambalam, Thiruvananthapuram, Kerala. It is alleged that Ms. Lumina (A-1) entered into a second marriage with Saneesh (A-2) under the Special Marriage Act, 1954, before the Marriage Officer in Nemom. 

The appellants are accused of being accomplices in the bigamy committed by Ms. Lumina (A-1), as they are relatives and friends of Saneesh (A-2) and Ms. Lumina (A-1) and allegedly shared the common intention to commit the offense.

Kuriakose Varghese, counsel for the appellants submitted that the essential ingredients of the offence punishable under Section 494 read with Section 34 IPC are totally lacking in the case setup by the complainant.

Alim Anvar, counsel for the complainant argued that the appellants namely, S. Nitheen(A-5), P.R. Sreejith(A-6) and H. Gireesh(A-7) being the friends of Ms. Lumina(A-1) and Saneesh(A2) participated in their bigamous marriage and stood as witnesses to the ceremony and thus, they are liable to be prosecuted for the offence of bigamy. It was further submitted that the appellants Flory Lopez(A-3) and Vimal Jacob(A-4) being blood relatives of Ms. Lumina(A-1) were aware of her subsisting marriage with the complainant, but they took no steps whatsoever to prevent Ms. Lumina(A-1) from contracting bigamous marriage with Saneesh(A-2) and thus, they too are liable to be prosecuted for the offences punishable under Section 494 read with Section 34 IPC.

Supreme Court observed that the complaint was filed alleging commission of the offence punishable under Section 494  read with Section 34 IPC. However, post recording pre-charge evidence, the JMFC passed an order dated 28th May, 2018 directing framing of charge against all the accused persons for the offence punishable under Section 494 IPC.

The bench looked into Section 494 IPC and observed that the order framing charge is erroneous on the face of the record because no person other than the spouse to the second marriage could have been charged for the offence punishable under Section 494 IPC simplicitor. However, this is a curable defect, and the charge can be altered at any stage as per the provisions of Section 216 CrPC.

Supreme Court observed that the complainant has not sought prosecution of the appellants for abetting Ms. Lumina (A-1) in her second marriage under Section 109 IPC. Instead, the appellants are charged under Section 34 IPC, alleging they had a common intention to commit the offence under Section 494 IPC. To establish this charge, the complainant must prima facie prove not only the presence of the accused at the second marriage but also their overt acts or omissions during the ceremony and that they were aware of Ms. Lumina’s existing marriage to the complainant.

The bench referred to the case of Chand Dhawan(Smt) v. Jawahar Lal and Others where it was stated that “9.………………So far as other respondents are concerned, it may be said that they had been unnecessarily and vexatiously roped in. The allegations in the complaint so far as these respondents are concerned are vague. It cannot be assumed that they had by their presence or otherwise facilitated the solemnisation of a second marriage with the knowledge that the earlier marriage was subsisting.”

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Supreme Court opined that allowing the proceedings of the criminal case to be continued against the appellants would tantamount to gross illegality and abuse of the process of Court. The order framing charge as well as the order rejecting the revision petition and criminal miscellaneous petition preferred by the accused appellants do not stand to scrutiny. 

In view of the above, the bench allowed the appeal.

Case Title: S. Nitheen & Ors. v. State of Kerala & Anr.

Bench: Justices B.R. Gavai and Sandeep Mehta
Case No.: Arising out of SLP (Criminal) No(s). 8529 of 2019

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